I have absolutely 0 legal training, so all these are simple observations and the conclusions and opinions are in no way expert. I will do my best to be accurate, but these are all still nothing more than my personal observations and opinions.
When I left off the tale, it was high noon and Madam Justice Blishen was listening to Mr. Katz, the lead counsel for Mr. Warman, present an argument why Mr. Christie, counsel not for Free Dominion but one of the co-defendants in the main defamation suit, has no standing at this hearing and should not be permitted to address the court.
This hearing was held solely to determine whether Richard Warman’s request that Connie and Mark Fournier, of Free Dominion, hand over the ip addresses which would reveal the identities of a number of Free Dominion members meets the 4 criteria, as set out by Justice Wilton-Siegel. Mr. Katz argued that since that had nothing to do with the defamation itself, and since Mr. Christie was only representing clients in the defamation portion of the case, he has no standing before the court.
Mr. Christie eloquently argued that his client is being sued for defamation. The second of the Wilton-Siegel points requires that Warman demonstrate that there is enough damaging ‘stuff’ there for a defamation lawsuit to go ahead ( establish a ‘prima facie’ case – this is to avoid ‘unjustified’ requests for identity disclosure). If he can show that there is no ‘prima facie’ case – this second point – then there is no case against his client in the least!
Therefore, it is in his client’s interest that he address the court at this hearing. (There was some specific word that was used in both Mr. Christie’s client’s case – so that was brought up and discussed, but to my untrained mind it seemed that the word itself was less important itself as it was only one of the ‘means’ to break the ‘prima facie’ point,)
Mr. Katz also pointed out that since Mr. Warman had arrived at a settlement with Mr. M– last Thursday, who had been Mr. Christie’s client, Mr. Christie has even less of a standing….
Mr. Christie pointed out that he is not there on behalf of Mr. Martin, but rather of Mr. B–.
In a most reasonable voice, Mr. Katz said yes, but Mr. Christie is trying to represent Mr. M.– here, and that has already been settled!
Mr. Katz truly does use his voice very, very effectively: he conveys at least as much (if not more) meaning in the tone of his voice as he does in the words he speaks. An excellent skill for a trial lawyer! (My personal opinion is that without Mr. Katz’s expertize, Mr. Warman’s may lawsuits would never have gotten as far as they have…)
Of course, Mr. Christie could not be rattled that easily – and the judge ruled that since the rights of Mr. Christie’s client are going to be affected by any ruling here, she will permit Mr. Christie to address the court briefly after the other parties have made their main arguments.
Point one to Mr. Christie.
At this point, Mr. Katz complained that this is supposed to be a short hearing and now, so much of it had already been wasted by the above argument…
The man has some daring! He was the one wasting the court’s time – now he complains about it, trying to shift the blame on to Mr. Christie! And in such reasonable tones…. He truly is another Daniel Webster! (The one from the story, not the Canadian lawyer…)
As he opened his main argument, Mr. Katz presented to the judge that the main aim of today’s hearing is to determine if there is a ‘prima facie’ case for Mr. Warman to proceed with his lawsuit. (i.e. Wilton-Siegel point #2)
Point #3 – whether his client has done all he can to ferret out the identity of the anonymous posters on his own has been satisfied: Ms. Kulaszka, the counsel representing Free Dominion, has conceded that this point has, indeed, been satisfied.
The judge pointed out that points #1 and 4 are also important. (#1 is whether or not the posters had a reasonable expectation of anonymity and the tricky one, #4 deals with weighing ‘public interest’, ‘freedom of speech’ and ‘right to privacy’)
Mr. Katz cited a precedent ruling set in Nova Scotia in June of 2010. Unfortunately, even though I was aware of the ruling at the time, I cannot remember enough of the important details to find it, so I could link it. (And, yes, I have spent a lot of time in cyberspace, sidetracking, while looking for this bit – so I have stopped in order to finish writing this up…)
Mr. Katz went on to argue that the specific libels against Mr. Warman are pretty clear. He listed them. For obvious reasons, I will not. (In case you are not aware, it has been alleged that one of the defendants is being sued because he quoted Mr. Warman, from a deposition, where Mr. Warman complains about being called a list of names. Apparently, repeating these – even when identified as a direct quote of Mr. Warman, could land one in a lot of hot water.)
Mr. Katz stressed that ‘context is important’ and addressed what he called the defendant’s position ‘that nobody takes bloggers seriously, so it is irrelevant if Mr. Warman is slandered in a blog…’. (My imperfect understanding of the defendant’s position suggests that this is a re-phrasing-to-the-point-of-error of their position, but mine is not the legal mind.) Of course people take bloggers seriously!
I think it is very nice that Mr. Katz thinks so highly of us! I like him too!
Then he showed a legal ruling from the US that ‘it is defamatory to refer to someone as a Nazi’.
In my never humble opinion, that statement is clearly false. Truth is always a defense. Therefore, that statement could only hold water if it said: ‘it is defamatory to FALSELY refer to someone as a Nazi’!
No, I am not making any inference as to Mr. Warman: just because he had joined a number of Neo-Nazi sites does not necessarily mean he is a Nazi.
I am simply addressing the incorrectness of the statement itself: in our country, truth still IS a defense! In a real court, anyway…
Alas – I see the wordcount has climbed rather high… So, I will break for now and continue this tale in Part 3.