I know I have posted these videos before, but…
…over time, some of the links got broken.
Plus, we cannot be remided often enough that the ‘LEFT-WING’ vs. ‘RIGHT-WING’ labels are woefully inadequate. Even the ‘Libertarian vs. Totalitarian’ distinction is not as useful as some may think….
Personally, the one political label that most closely describes me (if I HAD TO pick one) would be ‘individualist’.
Because the smallest ‘group’ that can potentially exist, the minimum number of members it can have is: ‘one’.
Because if the rights of each and every member of any given group are protected equally, then the rights of the group as a whole cannot possibly be violated.
The converse, however, is not true!
Therefore, in my never-humble-opinion, the default position MUST be to protect the rights of the individuals – this way, nobody is left out in the cold, with their rights stripped away simply because they do not happen to be members of he currently favoured ‘group’….
Without further fuss, here are the videos (sorry about the annoying background music – the alternative ones don’t work so well any more…)
After all, as John Robson says: we ARE the children of the Magna Carta and any constitution imposed upon us muxt be interpreted in that context, as an imperfect re-statement of the Magna Carta – and as subordinate to it:
Pat Condell says it so well…
See here for ‘Part 1’, which includes the background, the facts of the case (as agreed upon by both sides in the case) and the legal point of this hearing.
July 21st, 2011 was a blisteingly hot day in Canada’s capital. The temperature outside climbed up to 36 degrees Celsius and the humidity stood at close to 100%.
Just before ten in the morning, when I arrived at the corridor outside of Coutroom 36, where the hearing was to be held, the air conditioning at the elegant Elgin St. courthouse was already having trouble limping along and the temperature indoors was significantly above room temperature (defined at 21 degrees Celsius) and bordering on uncomfortable.
When I arrived, many people were just filing out of the courtroom: another case was being heard first, and this would take intil at least 11:30… when the court would take its first break. This dampened the spirits of the little group of people who, like I, had come to show support for the Fourniers and ‘Peter O’Donnel’ from FreeDominion, the defendants in a defamation suit brought against them by ‘Dr. Dawg’: many could not stay the full day…
Among the friendly faces, I recognized Fred Litvin of the Free Thinking Film Society, who was one of those who could not stay the full day. Andrew Phillips, leader of the Libertarian Party of Canada, as well as longtime freedom of speech supporters Roland and Fran (plus your never-humble correspondent) stayed for the duration of the hearing. As far as I could tell, nobody stayed to support Mr. Baglow.
I was curious to see John Baglow – having never laid eyes on him before. He wore a crisp blue shirt (curiously evocative of ‘the working class’ and of ‘cowboys’ at the same time) with aviator-style sun-glasses in place of a tie, dark pants and cute black cowboy boots with the most adorable little metal trimmings. In his hands, he held a summer-weight (possibly straw), white, fedora-type hat. His whitish-gray mustache matched his hair and I could read nothing from the neutral expression on his face. John Baglow, the man, remained a closed book to me.
John Baglow was represented by Peter Francis Burnett – a lawyer who struck me as competent and who has a very pleasant, confident voice.
The Fourniers were represented by Barbara Kulaszka, while ‘Peter O’Donnel’ (who had flown in for this hearing from BC) represented himself. The Fourniers are being sued for hosting the forum on which the insult was published, ‘Peter O’Donnel’ for having posted the insult.
The case was presided over by Mr. Justice Annis, J. (as the sheet outside the courtroom announced). The judge struck me as sharp, very sharp, and quite well versed in the internet, the blogosphere and the issues (and lingo) surrounding it. In other words, a judge who was knowledgable of the context and its complexities – something that is always a good thing, but which unfortunately does not always occur. After all, judges cannot be experts in everything…
I have exactly zero legal training – therefore, my observations must be unedrtood as those of a layman and nothing more. I am working from an imperfect understanding, and the few notes I took during the hearing. I will do my best to be as accurate and to present the case as correctly as possible with my limited understanding, but I am bound to make mistakes. If you can correct me, please, post a comment doing so!
Also, rather than presenting the case sequentially, I will address the individual ‘major points’ raised. It seems to me this way, it will be easier to follow the various threads of reasoning.
Ms. Kulaszka was the first person to address the court, as it was she who had filed the ‘Motion for Summary Judgment’ which this hearing was for. She was arguing that as both sides had submitted affidavitsin which ‘their side’ of the story was fully explained, and that since all the basic facts of the case are aggreed on by all the parties involved, all the facts relevant to the case are before the judge: the judge can, therefore, make a summary judgment based on this material and there is no need for a full-blown, costly trial which would drag on for years.
She spent a long time explaining the context of the ‘debate’ and the various insults traded, and so on. She described the trail – a debate about the ‘Omar Khadr’ affair which started on the Jay Currie blog (no longer up), moved from there to ‘Dr. Dawg’s Blog’ (where it degenerated to insults, back and forth), and from where it moved on to FreeDominion, a discussion forum. None of these facts were in dispute, by any of the parties.
As I understand it, if the facts in a case are all clear and no further evidence needs to be presented, it can be ruled on by the judge directly. If there are points which need closer examination, then the judge will rule that the longer, costlier process of a full trial will take place. This is what the defendants had requested and what the plaintif was fighting against: which is what this hearing was about.
Ms. Kulaszka cited ‘the McVeigh case‘ (see my list of some legal precedents on why I think it was relevant, and which may have taken place in BC, but under similar rules of Civil Law procedures to Ontario’s) as an example where a judge had all the facts in place and could rule on the whole case based on the evidence already submitted.
Mr. Burnett implied that it was silly of her to cite the McVeigh case, because there, the defendants lost!
Ms. Kulaszka pointed out that she raised the case only as a precedent in that was similar and demonstrated that the ‘mini-trial’ format of ‘Summary Judgment’ was applicable in this case.
The next major point of disagreement between the two sides, as I understand it, was a rather salient point over where a particular line lies… Mr. Burnett argued that IF the words that were used against his client COULD be construed as defamatory, then a full-fledged trial must take place to decide if they were indeed defamatory in this particular instant. Ms. Kulaszka argued that a full trial should only be held IF there are FACTS that are disputed: if all parties agree to the FACTS, then the judge has all he needs to make the ruling.
The judge asked a lot of questions of both sides on each of the points raised. He understood perfectly the context – he seemed to either be someone who follows the blogosphere or had done an excellent job educating himself on it in depth, including the ‘ascerbic’ debates in comment sections that can degenerate into name-calling matches. He characterized the case as such an instance, and that he simply has to decide whether one of the parties had ‘crossed the line’ during the name-calling…
In any case of defamation, the plaintiff must demonstrate that he/she had indeed had their reputation diminished as a result of the words of the defendants. Here, each side cited a different case as a precedent.
The defence cited the ‘WIC Radio case’ – a shock jock radio guy had, during a ‘live debate’ with an activist, said something that she took offense to and she sued for defamation. The Supreme Court of Canada ruled that any reasonable person would have understood this to be ‘name calling’ and not as ‘a statement of fact’ – so the activist’s reputation had not been damaged. Ms. Kulaszka drew the parallel to this situation: it was a ‘debate’ which degenerated to ‘name-calling’ and was perfectly understood as such by all the readers of the blog/forum. No harm – no foul!
Mr. Burnett raised a different case – Black v. Breeden. In this case, Conrad Black sued a number of newspapers for defaming him. The ruling (as I understand it) was that since the words were printed in ‘The Globe And Mail’ newspaper, the test for whether they are defamatory was whether an average reader of ‘The Globe And Mail’ newspaper would take them to be so. As in, believe them/take them as ‘fact’ – and thus ‘defame’ Mr. Black.
Mr. Burnett’s argument was that since the ruling took the opinion of the ‘average reader of The Globe And Mail’ to be the ‘test’ for defamation in the ‘Black case’, that was also the standard in this case. As in, the opinion of the ‘average reader of The Globe And Mail’…
Ms. Kulaszka argued that the ruling was that ‘the opinion of the average person reading the medium in which the words were delivered’ was the ‘precedent’ set by the ‘Black’ case: since this was delivered in the Canadian political blogosphere, it was the opinion of the average Canadian political blogosphere reader which was pertinent – not that of the ‘average reader ofThe Globe And Mail’.
The ‘Vigna v. Levant’ case was also raised as a potential precedent. However, I am confused about who was the first to raise it. It was certainly referenced by the judge quite a bit when he was asking questions. The judge had also asked both parties to email him by Monday any other ‘interesting blogger-cases’ which he could review for precedents.
I see that the word count is going dangerously up…so I will be more brief. Of course, all the usual ‘defamation’ bits were touched on and argued, that posting on the internet ‘contitutes publishing’, was there malice in the insult, etc. – and were argued well on both sides. However, I would be remiss if I were not to cite some details which set this particular case apart from others and make it very unique indeed.
These two very specific details concern the actions of the plaintiff – and how the defendants interpreted them.
Apparently, the defendant, ‘Peter O’Donnel’ had not done anything to link the persona of ‘Dr. Dawg’ to the real-life person, John Baglow. As such, Mr. O’Donnel told the judge that his insult was directed at the ‘online persona’ of a ‘typical left-wing blogger’ – not the real-life person of John Baglow, whom he did not know or even conceive of as an individual.
It was Mr Baglow himself who had created a ‘sock-puppet persona’ called ‘Miss Miew’ (sp?), who purpoted to support ‘Dr. Dawg’s’ arguments – and who, as ‘Miss Miew’ had ‘outed’ him by identifying ‘Dr. Dawg’ as ‘John Baglow’.
If I understand this correctly, ‘Peter O’Donnel’s’ defence is that the insult was not defamatory, but, even if it were, it was directed at the anonymous persona of ‘Dr. Dawg’ and that it was John Balglow’s own action in linking his real-life name to the persona in that discussion forum – the defendant’s own action – which could potentially have been harmful to his reputation IF the insult was indeed defamatory.
The judge asked for clarification on this point several times: and yes, even the plaintiff agreed that it was his action which linked his name to his online persona in the forum.
The Fournies are being sued for running the forum – and thus for being the ones who had publishe the ‘defamatory words’. However, they were not the only ones!
The plaintiff himself had also published these very same words, in the comment section of his blog – and left them up for many, many months.
The Fourniers claim that since the defendant had himself published these words, about himself, on his own site, they had no credible reason to believe that the defendant had considered the words defamatory.
Mr. Baglow’s lawyer, Mr. Burnett, admitted that this was so, but proposed that the plaintiff’s own actions have nothing to do with the defendant’s culpability and must not be considered in any other context than, perhaps, in the amount of damages to be awarded.
So, there it stands.
If I may indulge in stating my own, never-humble opinion of all this….
… at least, that is how it seems from my point of view!
I have not written much lately – but some events are so important that they simply must be written about.
Yesterday, 21st of July, 2011, I went down to the fancy courthouse on Elgin St, Ottawa, to observe the ‘Summary Motion’ hearing in the civil court case where John Baglow, aka ‘Dr. Dawg’, is suing Connie and Mark Fournier of the Free Dominion discussion forum and a member of the forum who posts under the name ‘Peter O’Donnel’.
In the past, whenever I went to one or another such hearing, I would take copious notes and then write them up – along with my impressions and never-humble-opinions into a post. Now, thanks to my clutziness, neither one of my arms is fully functional… so my notes are nowhere near as exhaustive and my account will necessarily be shorter; less of a record of what had happened and more of my impressions and opinions of what had happened. My apologies – but that is the best I can deliver right now.
John Baglow blogs as ‘Dr. Dawg’ (according to his lawyer, ‘he likes dogs’) – a somewhat typical ‘left-winger’ blogger (if there is such a thing) in the Canadian political blogosphere. From the words of his lawyer, we learned that he is a contractor who usually works on contracts for public sector unions and the Conference Board of Canada ( if I am deciphering my notes correctly).
‘Peter O’Donnel’ is a contributor to (and a moderator on) Free Dominion, one of (if not THE) oldest political opinion forum in Canada, focusing mostly on ‘little c’ conservative and libertarian issues. Free Dominion is run by Connie and Mark Fournier.
In the backdrop of ‘the Omar Khadr‘ affair, much discussion was happening in much of Canada about these happenings. On the one hand, some Canadians thought that Omar Khadr was a child caught in a war and an unfortunate victim of circumstances. On the other hand, many people saw him as a young man who took up arms on the side of the Taliban, who lay in wait until a US medic came to tend to a wounded person and then cowardly murdered him – and who therefore deserves to be punished in accordance with the law.
The crux of ‘the Khadr affair’ lies in Omar Khadr’s age at the time he committed the act of terrorism (and, a court of law did find that he did indeed commit one): under some laws, he was a ‘child’ while under other laws he was an adult. A polarizing issue, to say the least. But this is not about Omar Khadr – it is about a discussion regarding him, during which tempers flew high and debates degenerated into name-calling ‘online-brawls’.
2. What both sides agree about (as I understand it – if I am in error, please, let me know and I’ll amend!)
Something posted on Jay Currie’s blog (a blog with a conservative perspective, but where people of many stripes of opinion tended to exchange opinions in the comment section – but which was no longer up at the time of this hearing) sparked a discussion about the Omar Khadr affair, with many participants, two of whom were ‘Dr. Dawg’ and “Peter O’Donnel’.
The exchanges got heated, to say the least.
This discussion got moved from Jay Currie’s blog to Dr. Dawg’s blog, where the heated exchanges continued among various posters including ‘Dr. Dawg’ and ‘Peter O’Donnel’. It was said in court that at least one of these posts where the debated continued (in the comment sections) had 89 comments, of which 33 belonged to ‘Peter O’Donnel’.
‘Peter O’Donnel’ opened a discussion on this topic on the Free Dominion discussion forum, where the bulk of the debate then moved.
Both parties called each other names. Nasty names. ‘Peter O’Donnel’ stated the opinion (and I AM paraphrasing) that IF one supports Omar Khadr – who had indeed been convicted of terrorist activity on behalf of the Taliban – then one is ‘a vocal supported of the Taliban’. (‘Dr. Dawg’ was ‘a supporter’ of Omar Khadr – one of the people who portrayed him as a victim.)
Mr. Baglow (‘Dr. Dawg’) then created a sock-puppet persona called ‘Miss Miew’ (sp? I only heard it in court, so I may have mangled it – my apologies) who was posting in support of ‘Dr. Dawg’ and who ‘outed’ ‘Dr. Dawg’ as John Baglow by saying something to the effect of ‘Hey, this guy called Dr. Dawg a Taliban supporter – John Baglow should sue him for calling him that!’ (again, I was just listening in court and taking notes, so I am necessarily paraphrasing…)
Not satisfied with having publicly linked his own name to his online persona, John Baglow then proceeded to re-publish the exchange on his own blog. ( And, he left it up for many months.)
John Baglow contacted Connie Fournier and complained to her about the comment he had found offensive – on the Free Dominion site, that is, not from his own site. He demanded an apology and that the comments be removed right away. Free Dominion did not apologize nor remove the comments.
Hence, the lawsuit for defamation.
3. The ‘legal occasion’ (as I understand it)
All parties in the lawsuit had submitted affidavits in which each one of them explained ‘their side’ of the issue.
In Ontario (where this case is being heard), the Ontario Rules of Civil Procedure contain something called ‘Rule 20’ (see the ‘Some legal precedents…’ page at the top of my blog for more details) which, in a nutshell, is a
‘Rule allowing for summary judgment where there is no genuine issue for trial, and the proposed revisions that would allow for an issue to be settled by way of mini-trial.’
In a full-blown trial, there is testimony, cross-examination and ‘the full works’. It is costly and can drag on for years.
This ‘mini-trial’ is an alternative which can be used when one of the parties concerns files a “Motion for Summary Judgment’. A real, honest-to-goodness judge (not a moderator or a semi-judge) will listen to both parties and decide whether or not the ‘facts’ of the case are all in the submissions (so there would be no need for cross-examination and so on) and some other factors (which I am not so clear about) are satisfied.
If so and the case is pretty much ‘clear’ based on the materials which had already been submitted, then the judge has all that she/he requires to pass a judgment on the case. (This is the ‘mini-trial’.)
If not and there are facts which are in dispute or which can only be clarified through a full trial, the judge will not render a ‘summary judgment’ on the case but will instead order a full trial to be held.
On June 21st, 2011, I attended this hearing of a Motion for Summary Judgment which had been filed by the defendants in this Baglow defamation case.
It was very interesting.
Continued in Part 2.
If you happen to be in Ottawa on July 21st, 2011, consider swinging by the Court House on Elgin St.
Free Dominion is being sued by John Baglow of Dawg’s Blog.
If you can, come and show them your support!