Dr. Baglow vs Freedom of Speech: September 18, 2014 – Part 1

This is a continuation of a prolonged court, the earlier bits of which are here:  Day 1 part 1 and part 2 , Day 2Day 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.

September 17th, 2014, the third day of this phase of the trial, the plaintiff’s lawyer finished his cross examination of Connie Fournier and Mark Fournier took the stand to both testify and be cross examined.

Today, the 18th of September, 2014, was a most tantalizingly interesting day in  court!!!  Today was the day that the court-appointed ‘internet expert’ was due to testify!!!

I must admit, I was terribly curious to meet this ‘political blogosphere expert’!!!

If you have been following my reporting on the legal encroachments on our unalienable freedom of speech for a while, you may note that over the years (!) of my observations in the courtrooms, this will have been the first time ever to hear ‘expert testimony’.

Exciting indeed!

So excited, I completely forgot to note down what shirt Roger Smith was wearing today – and as the days bled together, all I can swear to is that he wore tan slacks and a blue blazer (I could see those even from behind…).  My apologies.

Connie Fournier wore charcoal trousers with a narrow pinstripe, sensible square-toed shoes, a pretty tan blouse with bright red poppies and a matching blood red cardigan with shiny gold nautical-style buttons.  For jewelry, she wore a simple, elegant circle of tiny diamonds and pearls suspended on a golden chain.

She and I entered the courtroom a little early (the air was thick with expectations – you can’t blame us!), about 20 minutes before ten am when the court was due to reconvene.  Madam Court Clerk was already at her post, busily getting things ready for the day.  (We were back to the original Court Clerk – the same lady from the Spring who tried to persuade Dr. Baglow that he should like cats and who didn’t want to be blogged or Tweeted about.)

Our entry into the courtroom was an intolerable intrusion into these preparations.  Chastised, Connie and I took the hint and extramuralized velociotously.  This seemed to put Madam Clerk into a good mood, as later, she happily joked about tossing out somebody’s cigarettes and chattered about her background, both legal and pre-legal.  Mr. Frenkel turned on his boyish charm and Madam Court Clerk just melted!

Oh, yes – Mr. Frenkel from the CCLA was back in the courtroom and no longer stood in for by the nice young woman (I hope this is an OK turn of phrase).  He wore the traditional lawyer robes, but differed from the other lawyers present in that he wore very crisp gray pants, instead of the traditional black ones.  His youthful face was framed by glasses with serious, dark frames which added gravitas to his appearance.  He really is a brilliant young lawyer – a heavy hitter by any means of assessment!

Dr. Baglow sported a cream, opened necked shirt which contrasted strikingly with his black suit and his ubiquitous riding boots, also black, with adorable silver trimmings.  His watch was also silver, while the frames o his glasses looked to me a gun-metal coloured more than silver.  In the left lapel of his suit jacket, he wore a silver pin – perhaps some abstract maple leaf?  Dr. Baglow truly is a very handsome man, at the height of his strength.

The charismatic Mark Fournier wore his navy, pin-striped suit with a navy shirt.  His chiseled cheekbones were flushed with expectation and, when they thought nobody was looking, he and Connie held hands.  Sorry, ladies, this one is hopelessly in love with his wife!

Jeremy, a frequent spectator at these hearings, was back in the courtroom and everybody – on both sides of this lawsuit – was happy to see him.  Dr. Baglow even chatted with him shortly (they are both history buffs) and, I am afraid I must report that in the courtroom, Dr. Baglow used the ‘B’ word:  the one word which is still beyond the pale in the civilized parts of the Universe.  Luckily, the judge was not yet in and nobody else seemed to notice that word (or, perhaps, its signifacance)…

Now, Otawa is the Capital of Canada.

If it were up to Justin Trudeau, Ottawa would be the weed Capital of Canada.

As it is, our esteemed Mayor Watson and his eco policies have turned Ottawa into the ragweed Capital of Canada.

And, right now, we are at the height of the ragweed season.  Thus, everybody who has to speak for any length of time is struggling not to wheeze and cough all over the place.  This requires frequent sips of water and everyone is struggling to have a fresh supply of cough-suppressant candies, the consumption to which Madam Justice Polowing had excluded from the usual food/drink ban in the courtroom.

Which brings me to another little detail in the courtroom:  all the tables have an ample supply of silver carafes of water and everybody (well, the important people at the front of the room) has access to white styrofoam cups from which they can sip this water.

Except, of course, the judge.  She (or he, as it may happen) always has a classy tall glass filled with ice water on her high table!

This is yet another reminder of the status in the courtroom:  the ruler from on high gets the civilized glass cup, the courtiers up front (if you excuse the pun) get to sip the nectar from the styrofoam cups … and us peasants in the gallery don’t.

Interesting observation:  Dr. Baglow sits at the front table (which faces the Judge, the Court Clerk and Recorder and witness box) with his lawyer, while Mark Fournier, equally a participant in this, lets his lawyer represent him at the table and humbly sits in the spectator are with the rest of us peasants.  I have long wondered why this is so…and why this seems unquestioningly accepted by everyone, even when there was not enough room at the front table…

Oh, my – I’m rambling.  My apologies, my indulgent readers!  Let me get right down to the court expert!!!

The expert turns out to be none other than Dr. Greg Elmer.

A quick google search shows he is quite well known and respected, as you can see here (with a ‘roguish-grin’ picture), here, here and here.

Dr. Elmer looks to be in his early-to-mid forties, a competent, intelligent and gentle man.  His hair is cropped very short, according to the latest ‘almost bald’ style and his eyes are quick to smile, the rest of his face following quickly.  His handshake (yes, I introduced myself when he looked at me inquiringly as I looked him up-and-down and scribbled on my notepad (a new one, on sale at Staples – with red lines and a pretty shell-design in one corner – I am a sucker for stationery and have been, from my earliest childhood…and mid-September, one can get awesome deals on stationery!) furiously – so I thought I’d better say ‘Hi!’) was cool and confident.

His clothing was very dark and classy and blended harmoniously.  A black suit (and shoes and socks, of course), the shirt was a deep blackish-blue and his tie was ever so slightly brighter/warmer blackish-bluish-purple.  The overall effect was very pleasing and classy.

At the start of the day, Dr. Elmer looked a little apprehensive – as if he were not quite sure how all this was going to go down.  Don’t misunderstand me – he did not seem worried or scared  – just apprehensive and vigilant as intelligent people tend to be when they face a situation new to them:  trying to drink it all in and analyze it and do their best in a new situation.

Madam Justice Polowin breezed into Courtroom #20 at approximately 9 minutes after ten am and worked hard to put Dr. Elmer at ease.  (Madam Court Clerk recognized her footfall right away, as soon as the staccato of her high heels became audible, and alerted us to her coming from ‘behind the scenes’.)

She looked crisp and fresh – in her billowing black judges’ robe, crisp white collar, her look is accentuated by a red sash that marks her out as a judge.  And when I say ‘sash’ I mean a diagonal thing like ‘Miss America’ or ‘Miss Universe’ would wear – but red, substantial-woolen-looking and with no words on it.  Today, her look was accentuated by delicate pearl stud earrings instead of the earlier delicate gold ones.

Madam Justice Polowin seems to like Mr. Frenkel – who is from the Canadian Civil Liberties Association, which, in turn, is an impartial intervenor in this case – and she relies quite a bit on his advice.  No, not all the time, but the Judge seems to trust him, as he is not part of either side in this debate and so he can be more impartial, his only goal being a good and just legal precedent in Canada, with no financial or otherwise vested interest in one or the other party winning.  Plus he comes across as an incredibly intelligent man, wise beyond his years.

Thus, Madam Justice Polowin entrusted Mr. Frankel with the admin bits of entering Dr. Elmer’s CV and particulars of how he had been engaged to come to court into the record, then jumping through the necessary legal hoops of having him formally qualified as ‘a court expert’.  It started out slowly, but, once done, Madam Justice was pleased to tell Dr. Elmer that now, he can add to his CV that he is a qualified court expert (the exact wording of his ‘expertise’, as per Madam Polowin, was so convoluted only a real-life-lawyer could get it and I most certainly could not wrap my pen around it, but it was something like expert…blogosphere…social…media…communication…political…plus-plus-plus…).

The upshot of all this was that Dr. Elmer knows his stuff, is good in ‘new media’, internet, blogs, message boards etc. with special focus on politics and Canada.  He studied it, lives it, teaches it and researches all aspects of it.  He gets to be a TV ‘expert’ on it – plus he has published a lot, including in ‘peer reviewed’ thingies.

Big Dog!

The only bit about him I did not like was his casual use of the word ‘collaborative’/’collaborate’.  Where I come from, ‘collaborators’ are lined up against the wall and shot – and the ‘normalization’ of this word necessarily includes the normalization of the practice of ‘collaboration’…something that ought to be avoided by moral people everywhere….  Aside from this (and I know I am bucking the trend here – but I AM RIGHT), I liked this court expert a lot!

Aside:  Dr. Elmer testified that, ‘in collaboration with others’, he created a ‘scraper tool’ – a bit of technology that collects data about people from social media sites – my ‘NSA warnings’ went off on that….think ‘Person of Interest!’

The next bit of questions/answers (between Mr. Frankel, the Judge and Dr. Elmer) was about the specifics of this case.

Did Dr. Elmer look through the Free Dominion site and Dr. Dawg’s Blawg?

No, he did not – not specifically.  Because he thought it would have been prejudicial – so once notified, he avoided them, even if he was aware of them before.

The judge regretted that, a it limited her questioning to the ‘general’, not ‘specific’ bits….but agreed that for the optics, this was likely better.

A bit of back-and-forth, but, eventually, it all got worked out, Dr. Elmer’s report got accepted as evidence and ‘fact’ without needing to be read and all that kind of good stuff.  Which, in the legal order of things, brought us to the cross examination of the expert witness.

Mr. Burnet, the plaintiff’s lawyer, got the first crack at Dr. Elmer.

Now, I must qualify this:  as at mid-day every day for the next few months, I have an obligation – and so I had to leave at 5 to 10 minutes after 11 am.  I return to the courtroom as quickly as I can, but, it does mean that today, I only caught the beginning of Mr. Burnet’s cross examination, as well as all of Ms. Kulaszka’s (Mark Fournier’s lawyer) and Connie Fournier’s cross examinations.  For this, I do apologize – but, obligations do intrude on my ‘court time’! The best I can do is tell you, my dear readers, what I saw and heard.

Mr. Burnet started the cross examination ‘softly’, but got ‘tough’ rather quickly.  If I ‘got the drift’ of where he was going with his questions, it seemed to be about people being able to find things out about people who post opinions, etc., online.  As in, employers or potential employers often ‘google’ their employees or potential empoyees….can get into trouble, loose a job or not be offered one.

Dr. Elmer agreed – but in a qualified way.

As in, one can track if someone is tracking them online – but they would have to actively track it, have purchased metrics services, etc., which not everybody does.  Thus, some people may remain unaware of who searched them up on the interwebitudes and what they found – and may use the info.

As I absolutely had to leave, Mr. Burnet was just getting started on the Rehtaeh Parsons sad, sad story and trying to use her tragedy to ‘score points’ – something I found rather distasteful and a bit ‘cheap’.

[Edit:  I took out the last clumsy sentence, as it was speculative.]

 

 

 

 

Thoughts on the Baglow vs Free Dominion ongoing lawsuit

This is something I have been covering for a while – and I am sad to say that I seem to be the lone person giving it attention over time (though others do drop in every now and then).

This is bad because I know I am a poor observer of the human condition, being an Aspie and all!  And this case will determine the life or death of the Canadian political blogosphere!!!

I know I ought to be writing up yesterday and today’s proceedings, but, I am  so very, very tired.  It may not seem like a lot, but, the strain of sitting up all day, several days in a row, is more than my broken body can comfortably handle – and with this weariness, I don’t think I could give do the write-up justice.

Plus I need to be very careful what I write.

Though Mr. Burnet and Dr. Baglow have assured me of their good will and that the complaint about some words (which I admit, I took seriously – given this is a defamation lawsuit and all, so I took them down right away to show good will) was just a joke and I was more nervous than I had need to be.  That is good to know, but, like I said, as an Aspie, I really have a hard time understanding where ‘the line’ lies that ought not be crossed….I would not have thought that the impugned words would have warranted this, either – but obviously, other people think they do, or we would not be here today…

When Mr. Burnet was reassuring me I was OK with what I wrote, I could not help but notice the elegant ring on the ring finger of his left hand.  Masculine, and elegant.  A gold band which encircled some sort of a black stone or center.  Very nice.  On the ring finger of his right hand, he wore a simple golden band.

I am sorry – I know I am rambling.

Which is precisely why I am not writing things up today…

But, I do promise you that I have copious notes to aid my memory and when I am in a more serene state of mind, I will write it all up!

 

Dr. Baglow vs Freedom of Speech: September 15, 2014

This is a continuation of a prolonged court, the earlier bits of which are here:  Day 1 part 1 and part 2 , Day 2Day 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.

Which brings us to the first day of the ‘fall session’ of the trial, where the defense part of this case starts.

Aside – I understand that the court-ordered ‘blogosphere expert’ will be testifying on Thursday..

I showed up in court nice and early – long before the information desk folks (on the 2nd floor of the Elgin St. Courthouse in Ottawa – but facing the main Elgin St. entrance) got the memo about which courtroom this particular civil case will be heard in.   However, as time passed on, I learned that the case will have been heard in Courtroom #20 – the courtroom closest to the main/front entrance (and thus dubbed ‘the smoker’s courtroom’).  Here are the players:

Justice:          Polowin, J.

Plaintiff:        Baglow, John

Lawyer:          Burnet, Peter Francis

Defendant:     Smith, Roger

Self-represented

                 Fournier, Connie

Self-represented

                 Fournier, Mark

Lawyer:            Kulaszka, Barbara

As the ‘players’ arrived on the ‘playing field’, these were my observations:

Barbara Kulaszka (BK) looked her steadfast self:  short hair kissed with just a tiny bit of silver, billowing lawyer’s robes framing her slender frame, she was her true self.

Peter Burnet, (PB) slightly balding and silver, looked distinguished (edit:  a complained-of phrase has been removed here).

Roger Smith looked dashing in his tan slacks, brown shoes, blue blazer, dark (black or charcoal) shirt with a blue-inside-a-gray-striped shirt and blue thin-striped tie, his silver hair dashing, his cheekbones chiseled above his silver, manicured beard/mustache.

Dr. Baglow wore his signature outfit:  black suit, blue shirt (opened collar, as if to stress his ‘blue collar’ sympathies), the ubiquitous riding boots (with delicate and adorable little silver trimmings), silver watch, rings on the ring and pinkie fingers of his left hand, silver hair and tailored silver mustache accentuated by the gun-metal framed spectacles he twirled in his hands more than he wore.

The charismatic Mark Fournier wore a new-looking dark blue suit with a thin gray stripe, black shoes and a cream, open-necked shirt.

Connie Fournier was elegant in form-fitting dark trousers which flattered her shape and a dark violet, v-necked thin-knit pullover (with cute button-sleeve detail) which highlighted her fine, strawberry-blond hair cut into a flattering bob.

To complete the picture, let me just say that the same Court Clerk (from the spring) who did not want to be blogged about (and worried she’d be ‘Twittered’) presided over the case, fussing over the improperly entered ‘stuff’ from the spring and lamenting that it will fall to her to re-enter and correct it all.  The ‘Madam Court Reporter’ was a pretty young woman sporting longish black hair with flattering bangs.  Her trim figure was perfectly framed in a navy blue, long-sleeved knit dress accentuated by a thin brown belt with gold-coloured metal trimmigs.  Her pumps were impeccable!

Also, the CCLA, an intervenor in this case, was not represented by Mr Frankel, but by a competent-looking young woman in a black-and-white striped shirt, black slacks and blazer and bright red flat shoes (which she shed while she sat cross-legged on the spectator bench) – I understand Mr. Frankel will rejoin the case later in this week.

Courtroom #20 differed from most court rooms in that on the right side, it sported a sturdy-looking gray sofa with 4 fluffy-looking pillows.  I can only presume that Dr. Baglow’s past blood-pressure difficulties motivated the court to pick a courtroom with a sofa in it.  Otherwise, Courtroom #20 was much like most of the courtrooms in the Elgin St. Courthouse in Ottawa:  creamy-white walls with the ‘head’ wall (behind the judge) being a wood-panel in the same tan colour as the doors and the wooden-bits of the spectator benches, bearing the Canadian Coat of Arms. (The back wall – not the benches!) The seat bit of the upholstered spectator benches was a muted pink, which clashed rather badly with the crude orange-red of the floor carpeting.

It is difficult to describe the air of expectation one can only experience in the courtroom, with everyone present and waiting for the judge to arrive.  I can only liken it to a cross-section of the feeling which, as a 14-month-old (OK – I’m an Aspie and remember this), you are expecting the vaccine-baring MD to enter the room where your mother is holding you down overlapped with the dread you feel as you are sitting at a desk, awaiting your fist Calculus exam paper to arrive.  Add to this the distinct staccato of high heels in the distance – it is ever present, even if completely unrelated to the judge’s arrival – and you approach the hushed tenseness that awaiting the judge’s arrival in the courtroom accompanies!

As in – no movie could possibly do it justice!!!  No amount of suspense could possibly capture the breathlessness of these moments!!!

At 10:05, Madam Justice Polowin, J., entered.

Her hair was longer and lighter than before – and her (paler than before) face looked puffy and strained.  Yet, her eyes looked as intelligent and as sharp as ever!

The first session of the first morning of a hearing are usually taken up with tedious ‘housekeeping’ or ‘administrative’ matters.  Not so in Madam Justice Polowin’s courtroom today!  We went straight to the start of the defense’s case!!!

The first person to take the stand was Roger Smith (aka Peter O’Donnel).  He explained that even though ‘Roger Smith’ is his legal name, it is not ‘unique’ – both ‘Roger’ and ‘Smith’ being ‘common names’. ‘ Peter O’Donnel’, however was somewhat less unique – and as it was his birth name, he used it extensively  (though not exclusively – he sometimes picked ‘humorous nicnames’) in his online activities.

It is my impression that Roger Smith is a very reluctant defender:  it seems to me that he believes that his only defense lies in his truly held beliefs (and that promoting these is in the public good), but that he also thinks that having to justify his deeply held ‘political beliefs’ in front of a judge is very inappropriate of itself (regardless of the eventual ruling) and subversive of our democracy itself – akin to having to having one’s very thoughts needing to br sanctioned by a court of law….which, obviously, is a violation of the most fundamental freedom – the freedom of thought.  So, it seems to me, he is very reluctant to present his beliefs and convictions to the court – yet, his only defense (it seems to me) lies in him claiming to ‘truly believe’ what he had said/written/posted on the internet.  As in – it seems to me as though Roger Smith believes that it is not his statement of his beliefs, but his convictions themselves, which are on trial here – a form of ‘thought-crime-policing’, if you will.

And, since (in my never-humble-opinion) he thinks ‘thought-crime’ ought not be a ‘crime’ (if you excuse my clumsy expression of the principle), he is having difficulty with the whole matter.

As in, defending his views would be a bit of  a violation of the ‘thought-is-not-a crime’ bit.

At least, that is the impression I have been left with following his testimony and the bit of cross-examination I saw.

The testimony bit of the day merely repeated what had been entered into the record in the past – just the light it had been cast in was ‘slightly’ different.  And by ‘slightly’, I mean ‘a lot’.  As in, the bits that the prosecution entered in as ‘strong’ evidence now seemed rather silly and frivolous…which is not much of a comfort, since in a civil case of libel, ‘malice’ is presumed and needs to be disproved, rather that that whole ‘innocent until proven guilty’ bit of jurisprudence….

Yes, much revolved around SmallDeadAnimals (SDA) and Jay Currie’s blog posts, as well as Free Dominion and the Conservative blogosphere in general…plus Dr. Dawg’s blog –  ‘progressive’ site run by the plaintiff (civil prosecution).

Roger Smith’s background – from Math and Science to an Honours’ BA in Geography in order to become a ‘Climatologist’ (‘Climate Scientist’ in Newspeak), along with the necessary Global Warming/Anthropogenic Climate Change baggage – was discussed, as was the means by which Roger Smith makes his living as well as his online identity  – all this was explored at great length.

Then we got into the relevant bits – the 7 words which are the subject of this lawsuit (and which I therefore fear to mention – on the pain of ‘re-publishing slanderous material’) and the context in which they had been uttered.

It seemed to this court observer that Mr. Smith not only proved (beyond a reasonable doubt- a much more strenuous test that required in a civil lawsuit) that he believed the truthfullness of his statements, but also that stating them in an online forum was ‘in the public interest’.

Actually, this is where things got rather interesting – after the lunch break (1-2 pm), when Roger Smith had finished his testimony and his cross examination by PB commenced!

PB seemed obsessed with the idea that Roger Smith’s view of what constituted ‘appropriate speech’ was ‘beyond the pale’.

Which is rather funny – considering me being in the audience (and the only person there in the courtroom with the express purpose to report to you, my dear readers, on the contents of this hearing)!!!

If you read my blog regularly, you may know that I am a free speech absolutist – because I am an anti-slavery fundamentalist.

Perhaps it is my Asperger’s that informs this bit of me, but, for better or worse, I cannot help but see this issue in black-and-white – with no gray in between.

To me, this is the necessary extension of the principle of self-ownership:  if you own your self, then you and only you are responsible for your reaction and any and all resultant action you may take based on what you hear/read.
In other words, if you can be swayed to bad actions through ‘hate-speech/incitement to violence’ you hear, then you are admitting that the speaker is a de-facto part-owner of you and thus, submitting to their will is a tacit admission/permission of slavery.  And I am 100% against slavery!!!
Self-ownership implies self-responsibility!
A 100% self-ownership (i.e. anti-slavery fundamentalism) implies a 100% self-responsibility, thus making all forms of hate-speech/incitement irrelevant.
Which means that all hate-speech/incitement laws are an admission of and permission for a form of slavery – something I will never accept.
And since I cannot accept any form of slavery, I cannot acknowledge that hate speech/incitement can sway a self-determining, self-owning individual…which makes outlawing it an admission that my core principles are irrelevant…something I cannot accept.
I hope this makes some kind of sense to you – it certainly makes sense to me.
But, that is me – and (thankfully) not the subject of this particular lawsuit.
Anyhow, it seemed to me that PB spent most of his cross-examination time trying to ‘nail’ the ‘bit’ where Roger Smith drew ‘the line’ between ‘permitted speech’ and ‘illegal speech’.

SILLY BUNNY!!!

As IF there ought to be such a thing as ‘illegal speech’!!!!

 

Roger Smith said he drew the line between what ought to be permitted speech and not somewhere between what Ernst Zundel said and what is routinely said online by people whom ‘the progressives’ label as ‘Neo-Nazis’ but who are in reality no such thing.

As in – according to Roger Smith – Ernst Zundel was ‘illegal speech’ while the wrongly villified ‘neo-nazis’ who were not really ‘neo-nazis’ were OK…if you actually listened to what they truly said rather than just buying into their rhetoric.

But, PJ tried very very hard to paint this in the worst light possible – as in, he tried to twist Roger Smith’s words into saying that Ernst Zundel’s crap (and his claims ARE crap) was OK but the Neo-Nazis were not OK.

It seemed to me that Roger Smith, naturally nervous, being on the stand and all, did not really understand where PB was aiming with this ‘twisting’.  But, the judge sure did!  And, she put PB in his place on it, too.

However, this was not the only bit of testimony that PB tried to twist – and I am not entirely certain that the judge (much less Roger Smith, who was justifiably nervous, arguing for his retirement fund and all) quite got the manipulation or not.

Anyhow, that is where I had to leave off – having real-life obligations and all….I do hope to be filled in on the bits I missed and report to you tomorrow!!!

 

 

 

 

Invite: 161 Elgin Street, Ottawa Court House, Sept 4: 9.00am, Court Room 7

Earlier in August, I watched an interesting case be argued (though very briefly) in Ontario Court.

I even started writing it up – though, thanks to a fever, I did not yet finish (it is far too complex for me to try to accurately report when I am still a bit feverish – please, forgive me the delay, it is in the name of accuracy).  However, what I have written so far about it is here:

In Part 1 of this series, I explained a little of the background of the ongoing Presto scandal, which has already cost Ontario taxpayers half-a-billion dollars – and how a concerned taxpayer (hereafter referred to as CT) had searched for who was behind this…and discovered the documents had been signed by none other than Kathleen Wynne, then Ontario Minister of Transportation and now the Premier of Ontario.

In Part 2 of this series, I explained a bit of how the Canadian/Ontario justice system function:  in order to safeguard from a government that will either fail to bring charges against certain individuals or will not uphold certain laws, each and every citizen has the power to, as a private person, lay criminal charges.  However, this safety-valve (a citizen-empowering protection against a corrupt government) is immediately eviscerated by permitting the government of the day, called ‘The Crown’ and represented by the office of the Attorney General of Ontario, who both employs all the crown prosecutors and is appointed by/serves at the pleasure of the Premier of Ontario, can take over any private prosecution and stay the charges for ever….and the example of Gary McHale in Caledonia was explained.  (This very legal precedent was cited heavily by The Crown representative in this court hearing.)

In Part 3 of this series, I explained a bit about the concept of ‘summary dismissal’ – using the example of Baglow vs. Free Dominion and John Does as an example.

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

Well, even before I can write up the last bit, the next chapter is being written.  The plaintiff, a concerned taxpayer (CT), is going sent me the following little invite:

 

 

Invite: 161 Elgin Street, Ottawa Court House, Sept 4: 9.00am, Court Room 7

On August 18, the Judge ruled that Applicant may bring proceeding against the Ontario Government, and the Crown must delegate authority to intervene to the Federal Director for Public Prosecutions. A concerned taxpayer brought the motion and it will be heard on Sept 4 at 9am. The issue is the threats by former MTO Minister Kathlynne Wynne to force TTC and OC Transpo to breach the Federal AIT (Agreement on Internal Trade) and Federal Gas Tax which has cost taxpayers up to $0.5 billion enrichment for private interests at taxpayers expense.

If you’re in the area and can spare the time, I hope to see you there!!!

Baglow v Free Dominion has become an Internet test case!

From Connie and Mark Fournier:

 

New news in the Baglow Trial

The court has now appointed an expert witness (that the parties have to pay for), and the “three-day” trial that turned into seven, now has seven additional daysscheduled in September!!

It is obvious that the court is serious about wanting to make case law regarding internet defamation, and that Baglow vs Free Dominion is now the test case.  We are doing our best to make sure that the decision is one that will help put an end to frivolous internet defamation lawsuits for good!

We’ve started a fundraiser to help pay for the court-appointed expert and for the additional court days.

You can help us by making a donation and/or by sharing our fundraiser link on your social networks!

The outcome of this case is important to all of us!

We can add offline donations to our fundraiser total now, so, if you prefer:

You can use PayPal by clicking this link:  Donate
 
or

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Connie Fournier
2000 Unity Rd
Elginburg, ON  K0H 1M0

As always, your thoughts and prayers are appreciated more than anything else!  Thank you so much for your faithful support! 

Fondest Regards,
  
Connie and Mark

 

John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 7, part 3

Day 1 part 1 and part 2 , Day 2Day 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 will be written up later, as writing it up may affect the trial…

Day 6 is here.

Day 7 part 1 is here and part 2 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.

 

Following up on Dr. Baglow’s ‘uncivil’ language regarding Kate McMillan, Mr. Frankel brought up Dr. Baglow’s testimony that he believes in being ‘uncivil towards the uncivil’.  In my never-humble-opinion, this was a low point for Dr. Baglow….being shown to have been ‘uncivil’ to Kate McMillan even after she had been so ‘civil’ to him!

It was at this point that the judge noted that the level of sarcasm on the blog posts she had read was incredibly high…and she questioned Dr. Baglow if all the blogs were like this.  He explained that no, not all were – for example, some of the anthropological blogs he frequents, even though they address controversial topics, they maintain an academic level of discourse.

Then we got into the Godwin’s Law…the discussion was predictable, as was the redirect regarding it.

Following that bit, Mr. Frankel went on to demonstrate that Dr. Baglow did not object to much more reputation-damaging statements than the impugned words, such as  being called ‘a shill for Hezbollah’ and ‘traitor’.  Dr. Baglow’s response to all this was ‘context’…as in, had it been in ‘different context’, he would have taken legal action against them, too.

Next Mr. Frankel concentrated on the difference between Dr. Baglow’s blog posts and his editorial pieces for the National Post (having convinced an editor by the name of Kelly McParland (sp?) that having a leftist’s POV would enrich the publication).

It seemed quite clear to me what he Mr. Frankel was doing (if, indeed, he was doing what I think he was doing):  he was demonstrating that the submission process to a newspaper – even an editorial – is much different than a blog post or comment for a blog post.

It also seemed to me that Dr. Baglow also saw where this was going and was doing his best to avoid going there…like saying that ‘he knew how an op-ed ought to differ from a blog post so there was no need for anyone else to make changes to it’ and so on.

Yet, Mr. Frankel got Dr. Baglow to admit that the comments to his blog were not read by him until after they had been posted – in other words, he had no ‘editorial  control’ over the comments posted on his site – while the op-ed pieces he submitted to National Post were not only groomed by himself to adhere to a different standard than a blog post would, but that they had to be vetted by the editor prior to publication.

To me – this is the key difference between the blogosphere/discussion forums and actual online publications:  the ‘newspapers’, even in their online versions, have editorial control of what they publish because they read and OK everything PRIOR to publication, while blog comments and discussion forum posts/comments are NOT read/vetted by the administration prior to publication.  Indeed, in the case of a discussion forum with some 10,000 users (like, say, Free Dominion), vetting all posts/comments by the administrators would not only be physically impossible, but leaving everything in a vetting cue would prevent the ‘online conversations’ which define the very nature of debate on discussion forums.

 Therefore, it is (and I am extrapolating where I think this argument was going) it is ridiculous to hold people who have not seen a comment/post to the same standard of responsibility for it as those who have read and vetted it.

 

The next bit of time was taken up with discussing one of Dr. Baglow’s least favourite politicians… Vic Toews.

Frankly, I did not really grasp the significance of all this – except to unmask the visceral hate Dr. Baglow has the capacity for.  I really did not understand how this bit impacted on the matter in hand…except that Dr. Baglow’s hate-on for this politician resulted in him posting some nasty stuff about him – stuff one might argue was more slanderous than ‘the impugned words’….  As in, it demonstrated Dr. Baglow had both written and published more ‘libel-worthy’ things about Vic Toews than had ever been posted anywhere about him self.

Dr. Baglow’s not entirely convincing response was that had he been called on it, he would have cowered in a corner and backed down with a generous apology.  (I am paraphrasing somewhat…but I found the answer to be less than convincing because Dr. Baglow would not look up while he spoke until almost the end and then hurriedly added that, of course, he would only do it for statements he thought were truly potentially defamatory – and that then he’d re-phrase them but, of course, he would not take down and apologize for frivolous claims…)

I know I am going over this in a LOT of detail – but, I do think that the CCLA’s participation as ‘a friend of the court’ in this matter is very, very important.  The outcome of this case will, after all, determine the freedoms all of us enjoy (or not) on the internet!!!

The next bit struck a little bit close to home for the CCLA:  supporting freedom of speech was being criticized as ‘enabling’ hate speech….

Yet, Mr. Frankel was able to turn it inside out and, after he got Dr. Baglow to admit that supporting free speech – even for neo-Nazis (as per some people’s definitions) could be perceived (and was repeatedly labelled as such by his ideological comrades, as well as Dr. Baglow himself) as ‘support for neo-Nazis’ (or other such ‘hate’ groups), then support for Omar Khadr and his ilk could, reasonably, be seen as ‘supporting’ – or, at least ‘giving aid and support/comfort’ to the Islamists/Taliban that Omar Khadr was working with. What’s good for the goose…

It was very well done and it revealed clearly demonstrated the ‘if one, then the other’ bit here.  I fully expect it to come out in Mr. Frankel’s closing argument.

I suspect this highlights the ‘important’ bits of Mr. Frankel’s cross examination.  I know, my write-up is verbose, but it took surprisingly little time – just over an hour!

The court took a little (less than an hour) break at this point. And, so shall I – leaving the rest for another post!

John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 6

Day 1 part 1 and part 2 , Day 2Day 3 and Day 4 part 1 and part 2 of this trial were covered in March, 2014 (write-ups by me at links).

I have as yet to write up day 5…as it was a little complicated and I would hate to get it wrong…let it suffice to say that the day started out with Mark Fournier’s lawyer, Ms. Kulaszka, cross examining Dr. Baglow – and it was in continuing this cross examination that the trial resumed today.

Oh, what a tangled web this lawsuit has become!!!

So many threads, on numerous blogs, intersecting, backtracking, re-posting of threads between blogs (with the necessarily resulting divergent discussions) – it’s messy, messy, messy, messy!

And the acerbic language, colourful metaphors, hyper-hyperbolies!!!

And by colourful, I do mean mostly brown…as in, Nazi brown…

But, let me narrate the day from the beginning:

The court was scheduled to resume at 9:30, so I set out nice and early so as not to miss a second of it!  By 9 am, I was whipping down the Quensway towards downtown, traffic fast and smooth, despite the warm rain.  The radio was droning on about one thing or another when I heard a report that Ottawa is the 3rd most  traffic congested city in Canada (third only to Toronto and Vancouver) and 5th most congested city in North America. As the disembodied voice in my dashboard went over the details, the traffic on the Queensway slowed down to a crawl!

How lucky for me that I was nearly at my exit – Metcalf St.!!!

I reached my short little off-ramp.  I was quite happy – as, in the past, it had taken me between 7 and 12 (worst traffic imaginable) minutes to get to the City Hall, where the ample parking is practically under the Courthouse.  So, was going to be early!  YES!!!

At this point, the reporter chose to point out that the most traffic congested time period on Ottawa is  – wait for it – Tuesday mornings!!!

(Of course, today WAS Tuesday morning…)

Well….if this were in a movie or a novel, I would have called it ‘calculated’ and ‘overdone’ and ‘not realistic’.  But – and I still have a hard time believing this – the tiny little distance to travel down the short little Metcalf St. offramp took me 20+ minutes to travel!!!

As I finally made it to Elgin St. (just a few short blocks to go up to the courthouse), I realized it was dug up with construction……and very, very s l o w….

At last, I pull up to the City Hall parking entrance, just south of the Elgin St. courthouse, and I pull in….and, for the first time in my memory (and I have gone to quite a few of these court hearings by now), the lot was FULL!!!  The parking attendant who turned me away told me I needed to go to the Laurier Street parking lot.  So, I went.

Of course, the Laurier Street parking lot was also full.  But, pulling out of that entrance, I got stuck going onto the Laurier Street bridge – and the unholy mess of traffic at Ottawa University.  THAT is a mess at ANY day and time – and much more so on the dreaded Tuesday morning Ottawa ‘worst traffic congestion’.

Oh – did I mention that every one of the streets there is  under construction?

And – there were tour buses with high school trippers stopping everywhere, spilling their charges in all directions….

Eventually, I managed to fight my way to the just-waking-up Market, then back downtown… and now I got turned down by four different ‘always a cert’ paring lots before I finally found a place to rest my teenager-transport-vehicle…

…and I RAN to the courthouse.  Let me warn you – this is a precarious process at best and I would not be surprised if there were reports of earthquakes in the area as a result….

Finally – I was there!!!

I found my way to Courtroom #37 – a really big one (where, if I remember correctly, the jury selection usually takes place).

I burst in, pen and paper in hand (so as to make as little noise/disruption as possible)  and saw that ‘we’ were still waiting for the judge to enter!!!

YES!!!

It may have been well after 10 am, but I still got there before the judge!!!  I just had time to note that Beth Trudeau from the Language Equality folks and a companion were there supporting the Fourniers, as well and the charming Aubrey and his lovely wife (in a pretty floral-print top with an elegant cross-mid-riff detail and flattering tan pants).

Connie Fournier looked very sophisticated in a smart, yet feminine, tan blazer topping an elegant, layered, reddish-brown, abstract-floral patterned chiffon skirt with a matching reddish-brown blouse and a silvery necklace, all polished off with nice black pumps.

The charismatic Mark Fournier wore a grey herringbone blazer, black pants/shoes, striped shirt and a tie – and his deep eyes shone as intensely as ever!

In contrast, Dr. Baglow wore an open-necked blue shirt under his elegant black suit, accessorized with a chunky watch, a lapel-pin and his signature riding boots (which were clean and shined!)  It is really too bad Dr. Baglow is on the wrong (from my free-speecher-absolutist point of view) side of this lawsuit – he is very charming and an excellent conversationalist!  (And very good looking to boot!  …no pun intended – just saw it when proof-reading…)

Courtroom #37 is big – really, really big.  It is the largest courtroom I have ever been in.

There is not one big table for the lawyers/participants, but two, layered behind each other.

On the right, there is a jury box – on the left, there is a plexi-glass ‘penalty box’-like thingy from which I imagine very dangerous criminal suspects would be able to watch their court proceedings.  Quite somber….

In addition, the acoustics in the room are a bit freaky.  Everyone speaking has to speak into a microphone and the words are piped in through hidden speakers…except that all the mikes are on at all times, and pick up ‘everything’.  So, throughout the day, I kept looking over my shoulder as it sounded as if someone ‘just behind me’ were breathing loudly – even though there was nobody there!  Yes, trick of technology – but still creepy…

Madam Justice Polowin breezed in just a few minutes after I caught my breath and settled into a position where I could see Dr. Baglow’s face when testifying….his face is indeed very expressive of the emotions he is experiencing and/or projecting….after all, he IS an experienced Labour negotiator and I, as an Aspie, lack even average ability to judge facial expressions.  Still, I did not want to miss a bit!!!

 

Without all of the documents and threads in front of me, it was a little difficult to follow all that was said.  But, I will try my best.

The morning started with some procedural arguments – par for the course, as I’ve learned.  It seems Connie wanted to include some new documents, but, not being able to prove that they were so hidden that she could not have found them earlier (despite her having said some were too recent to have been included in earlier findings), they got ruled inadmissible.  It seems to my layman’s eye that there is a huge chasm between what is the truth of the matter and what is admissible in court.  Undoubtedly, thinking the courts were there to find the truth of a matter demonstrates my lack of sophistication.  My apologies…

Once the procedural stuff was dealt with (Madam Justice Polowin seemed much more strident than before), Ms. Kulaszka, Mark Fournier’s lawyer, started things off.  She covered some of the same ground as before, which helped me catch up on where it was we had ‘left off’.  In a case like this, chopped up by scheduling pressures, continuity is important!!!

A few times, the judge lectured Ms. K. on ‘stuff’.

A few times, Mr. Burnett, Dr. Baglow’s lawyer, objected to some things.

Aside:  Mr. Burnett affects the same patronizing drawl that so infuriates me when the current Ottawa Mayor, Jim Watson, employs it.  Pretending to sound ‘reasonable’ while uttering the worst kind of jibberish (Mr. Watson,, that is…)  I don’t know what it is about that manner of speech that rubs me so raw, but, it does and it makes me feel so looked-down-upon and denigrated, I have to consciously use self-control not to burst out in protest!!!!  Oh, and during today’s proceedings (and during breaks), Mr. Burnett changed up his nervous tick from scratching the inside of his left ear with the arm of his glasses to scratching of the inside of his right ear with it….

One of the bits that Ms. K.’s cross examination focused on had to do with the IP address of Ms. Mew.

In the past, Dr. Bagow had testified (if I recall correctly) that he is technically not savvy and does not even really know the implications of what an IP address is – he had his IT expert, Mr. Bow, to handle all that.  Yet, under Ms. K.’s cross examination, Dr. Baglow testified that he thought it was difficult to believe that ‘everybody’ (especially Connie F.) would not know that HE was Ms. Mew as the IP address of his email would have been the same as that of Ms. Mew’s post’s IP address….

It came out during the cross examination that Connie F. was using gmail, which does not include the header info that contains the IP address – as Dr. Baglow explained – but he had assumed she could easily get it, somehow.  It was precisely because gmail does not show the IP address in the header that Jay Currie’s involvement in identifying Dr, Baglow as BOTH Dr. Dawg and Ms. Mew became necessary…  If I may say so myself, it seemed that between his testimony in March that he was not really sure how that whole IP thing worked, and today’s very specific testimony how IP address info could be ‘easily’ gleaned and used, Dr. Baglow seems to have acquired a very large amount of IT information in a very short time!!!

What is more, he presumes Connie F. would have been able to use the knowledge he claims now but denied in March to have found his identity out years ago…which, according to him, demonstrates he was not hiding who he was while posting as Ms. Mew.  At least, that is how it sounded to my untrained, ignorant ears:  i.e. my opinion only, not fact and never to be mistaken for fact.

If anyone would like to email me their own eye-witness (or participant) version of these events, I’ll be happy to publish it as an update on this post, in order to be fair and comprehensive and as objective and informative as possible.  After all, the more points of view there are, the better you, the reader, will be informed!!!

Ms. Kulaszka had finished her cross examination of Dr. Baglow at approximately 11:05 am.

Connie Fournierwas the next one to cross examine Dr. Baglow.

The questioning went back and forth, wither and hither.  Yet, the first part of Connie’s testimony focused on the technical aspects of the case.  It was detailed and technical and very, very specific…..it was only after the break that we got to the ‘political’ stuff’

What follows is not the back and forth of the questioning, but, rather, my highly imperfect conclusions as to what was shown by her questioning.  And, I will not limit it by technical/political, when what….just what my highly imperfect observations lead me to conclude.

There was much of going over the ‘same old ground’  – Haloscan, Echo, Disqus, transfer of comments, platforms, tech experts, difficulties, etc.

Still, it seemed to me that Connie established that while Dr. Baglow and Mr. Bow claimed the comments from ‘the old site’ (before Dr. Dawg migrated it to Mr. Bow’s server and newer technology/movable type) were still visible as of March 2011, even though Dr. Baglow and Mr. Bow claim to be ‘shocked, I tell you’ that these comments did not disappear in November 2010.

In my very imperfect understanding, Dr. Baglow and Mr. Bow claim that all comments from the ‘old Dr. Dawg’ site were lost, because Dr Dawg did not update his Haloscan comments to Echo protocol when Echo bought Haloscan….and then the old protocol comments could not be migrated to Disqus because there were no drivers to go from Haloscan to Disqus without the intermediate step…so, all these comments were stored on a server in a file, but could no longer be accessed via the internet.

When Connie F. was working on her defense in this case, she claims the comments were fully visible not just till November 2010, but until late March Early April 2011 – and just went ‘poof’ when she was using them.

All the disclosure materials submitted to Dr Baglow and his lawyer, they requested communication from March/April 2011 when the comments actually disappeared from the web:  however, only communication from November 2010 had been supplied to them by the plaintiff.

Dr, Baglow maintained that he believed the comments had disappeared  in November 2010, which is why he provided emails from then – and that he thought the defendants were just too stupid to have realized the proper time frame, so he provided them with what they needed (in his mind), not what they were actually asking for.

The ‘killing blow’ came from Connie when, after she established (beyond a reasonable doubt, not just by the preponderance of the evidence, as required in a civil suit)  that only Dr. Dawg (Dr. Baglow) and Mr. Bow had admin access to the site and Dr. Dawg’s email at this time – yet ‘someone’ had posted a ‘test comment’ from Dr. Dawg’s gmail account onto that site that is time-stamped in April 2011!!!

Dr. Baglow had no idea how THAT could possibly happen – he is, after all, technologically ignorant…..

Yet, when he testified about this, his gaze was lowered and he would not meet anyone’s eyes until after he had finished his claim of ignorance.  I do not pretend to know what ht means, being really bad at interpreting facial expressions – I am just offering he physical observation for your own conclusions.

There was a lot more Connie questioned Dr. Baglow about, but, this seemed to me to be the most important point.  Not only because Dr. Baglow avoided eye contact, but also because Mr Burnett, his lawyer, exhibited a huge amount of nervous ticks and affected frequent ‘deep sighing’ during this bit of cross examination.  Just from that, this one seemed to be ‘a biggie’, in my never-humble-opinion.

As Connie had finished her cross examination of Dr Baglow earlier than expected, the judge thought it would be a good idea to finish the cross examination (by the CCLA lawyer) today, then start the defense’s case tomorrow.  However, as Mr. Smith had been told that this portion of the trial would only be the cross and the defense’s case would not start till September, and since he ought to be there for all the defense as something Mark Fournier might testify to might end up being exculpatory for Mr. Smith, he needs to be there for the full defense bit….so they could not start it tomorrow.

There was a lot of wrangling, back and forth, and so on….

It seems 5 days in September may be insufficient to finish the case.

Plus the Judge is demanding an ‘expert witness’ that all sides agree to….which the CCLA lawyer will try to find, though finding someone with a PhD in ‘blogging’ willing to testify may be difficult.

Yet, that is exactly where the things ended today.

I look forward to seeing what tomorrow may bring!!!

 

 

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