John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 4 part 1

Day 1 part 1 and part 2 are here.  (all previous caveats still apply, though I have temporarily borrowed a slightly better tech.)

Day 2 is here.

Day 3 is here.

Alternate account is here:  day 1, day 2day 3day 4.

Disclosure:  It may be important to note my past experience with PSAC, that very powerful and ruthless public sector union, of which Dr. Baglow testified he had been the Executive Vice President of.

When, decades ago, I was a wee little teenager, shortly after we came to Canada, my mom got a job where she was forced to become a member of PSAC.  Back then, there was a lot of tension created by this most militant union.  Once, just before a strike, my mom naively said she opposed the strike – within earshot of a union thug.  We started getting phone calls at all times of day and night.  My mom got threats that were not even thinly veiled.  Once, a caller told her where I went to school, the times I walk there and back and the exact route I walk…

My mother was so frightened that she took a leave of absence until after the strike….and this event had, for ever, opened my eyes to the way labour unions in Canada function and ‘get things done’.

Thursday, day 4 of the trial, started with a bit of excitement.

Being a ‘morning person’ (that is, I hardly ever go to sleep until after I’ve said ‘hello’ to the morning), I find it difficult to actually be places at an uncivilized hour, like, say, 9:30 am.  So, I missed the original action, but it had caused such a buzz and so much comment, I was soon filled-in on the situation.  Like I reported earlier, witnesses were not allowed to hear each other’s testimony, nor was anyone allowed to tell them about it.  Thus, as I left the court yesterday, Dr. Baglow was pacing expectantly outside of the courtroom, not being allowed to know what Mr. Bow’s testimony and cross examination brought out.

But…

While surfing the net in the evening, Dr. Baglow accidentally encountered a blog which reported on day 3 in court – and thus Mr. Bow’s testimony!!!

How very, very unfortunate that out of the hundreds of thousands, nay, millions of blogs in the blogosphere, Dr. Baglow accidentally landed on the one and only blog in the world where the forbidden information was published…

Of course, being a moral and upright ex-union boss, as soon as he realized what he was reading, Dr. Baglow logged off right away.

There were only 2 observers in the courtroom who were blogging about the case, and I didn’t write up day 3 until yesterday, so we can narrow down pretty easily which was the blog in question.  However, the court clerk and stenographer did not know that and the court clerk was sending daggers out of her eyes in my direction all morning.

I think the court clerk must have a very difficult and frustrating job.  While I have never heard any of the other court clerks in the cases I have observed so far complain about their job, this one was more articulate.  She kept explaining to anyone within earshot just how much more difficult they were making her job.  And everything in the courtroom seemed designed to annoy her – from the way the chairs were arranged to the fact that some people left the courtroom through the left side of the door instead of using the right side only.  Poor woman – so much responsibility and so many unnecessary obstacles were being hurled into her path.

And now this!

“Now I have to worry about  being on some BLOG!!!’ she lamented at one point, as she shot me a particularly venomous look.

It must be a difficult job, indeed!

But, back to the substance of the trial.  I am not quoting directly, but rather expressing my imperfect understanding of the testimony and cross examination.  Timelines may be jumbled and at some points, I may put specific bits of testimony and cross examination together, to maintain the narrative.

As I came in, the blogger Jay Currie was under discussion.  (Note – the linkie is to his new blog, which I quite like.  The discussion here is about his old blog, which Dr. Baglow says was quite good, but I myself hardly ever went there as I simply did not like the format and feel of it.)

Jay Currie’s old blog was a bit of a cross-roads where a lot of unlike-minded people went to for ‘verbal fencing’ – not because they actually expected to convince anyone of the rightness of their point, but simply to bicker.  Personally, I detest bickering, so I hardly ever went there and never took part in the pointless bickering.  This was not the case for Dr. Dawg (Dr. Baglow’s online persona), nor for Peter O’Donnel, the other persona of Roger Smith.

At some point in time, Dr. Dawg had a private email conversation with Jay Currie, which he had subsequently learned was shared with Mark Fournier’s lawyer, Barbara Kulaszka.  Dr. Baglow was deeply hurt and very disappointed by this breech of trust and invasion of privacy.  Poor Dr.Baglow…

It is my guess that the emails referred to here were the ones which definitely established the identity of Ms. Mew as a handle of Dr. Baglow.  Dr. Baglow insisted that everyone knew he was Ms. Mew as the nickname was an obvious play on ‘Dr. Dawg’.  However, I suspect ‘everyone knew’ would not be a good enough identification for the courts….and nor would using Ms. Mew’s IP address, as numerous courts have ruled that an IP address cannot be used to identify a person.

Anyhow, at this particular time, Dr. Baglow testified, the online sparring in the comments between himself and Jay Currie had gone on for quite some time.  Dr. Baglow was upset to find out that the offensive materials (those 7 little words, and, in my never-humble-opinion, had the article used been ‘a’ instead of ‘the’, we could not be here, in court – so, listen to all us Grammar-nazis out there, it may help you avoid a lawsuit!) would not be taken down and he was very, very hurt and angry.

The discussion now moved to something that had been written, but I could not see as the exhibits are not available to the spectators, but it was understood by the Fourniers as a threat to use the courts to bankrupt them – and thus was said to have demonstrated malice on the part of Dr. Baglow.   If I am not mistaken, it was something like that when this was all done, he, Dr. Baglow, would get Roger Smith’s harpsichord and play it in Mark and Connie’s house, which he will have won in the lawsuit.  Or something like that.  The Fourniers and Roger Smith took this to be a threat of lawfare – where the process is as much of a punishment as any potential outcome (and something which spreads ‘libel chill’ throughout the blogosphere)  but Dr. Baglow testified that this was just a bit of ‘bravado’ and ‘nothing to pay serious attention to’.

As a matter of fact, there were quite a lot of instances where Dr. Baglow was ‘displaying bravado’ or just writing words in frustration at having such an injustice committed against his person, and any words uttered in such a state of mind, no matter how derogatory or sexually degrading (those would be the ones directed at Connie Fournier, the lone female participant in this farce of a trial – and the one for whom Dr. Dawg’s vilest of insults were reserved), were not any evidence of malice or bad will, but just a symptom of frustration.  Had the Fourniers been good little unwashed plebs, and done everything the intellectual Dr. Baglow demanded, they would not have brought such malicious invective on themselves!!!  At times, I think Dr. Baglow felt quite hurt that the Fourniers, Connie in particular, had forced him to use such uncivilized language…

Please note, I am paraphrasing and getting the ‘gist’ of the testimony as I understood it, not quoting Dr. Baglow directly….and I am using the word ‘malicious’ in the colloquial, not the legal sense of the word as I have no legal training.  And I am applying the word ‘malicious’ t the words used, not to D. Baglow.  Just thought I ought to clarify that here, so nobody would be misled.

Aside:  the kind of language that Dr. Baglow used was truly, truly ‘past colourful’.  For example, he called a male blogger (not involved in this lawsuit) a ‘flaming …..’ where ‘…..’ is a word for female genitalia.  Now, I don’t care how punny anyone thinks this may or may not be, but, using bits of female anatomy as an insult to hurl at another man:  if THAT is not anti-woman hate-speech, I don’t know what is!!!

Dr. Baglow testified most vehemently that he does not approve of, indulge in or permit (on his blog) ‘Hate Speech’ of any kind.  Whenever someone used the phrase ‘right to freedom of speech’, he made sure to insert the word ‘alleged’ before the word ‘right’ – with great emphasis.

His lawyer, Mr. Burnet, kept ‘fumbling’  the documents and getting the exhibits ‘mixed up’.  And, at times, he kept ramming the left arm of his glasses into his left ear….  How exciting to witness such skillful courtroom theater!!!!

Another ‘current’ through this testimony was about likening Connie Fournier to Nazis.  Perhaps not in name, but in imagery.

Dr. Baglow testified that he did not say Ms. Fournier was a Nazi, nor does he think that she is.  But there were so many statements brought up during the testimony and the cross examination where Dr. Baglow used Nazi imagery that his professions seemed weak at best.

Then there was some testimony I could not follow, but it sounded as if Dr. Baglow were defending himself from accusations of having written that Judge Annis (the one that ruled that the ‘disputed words’ were not capable of being defamatory) – among other judges – was ‘in the pocket of the conservatives’…  Please, do take care that I am stating, flat out, that I did not understand heads or tails of this bit of testimony – just that this is what it sounded like was happening.  Mr. Baglow, while admitting to writing the words, denied most vehemently that this was their implication.

Then Dr. Baglow referred to 2 different studies – again, I had no reference, this was all in the documents I had no access to – that ‘proved’ one or another of his statements/positions.  But, the judge stared at Dr. Baglow and verbally spanked him by pointing out that she read those two things and they were nothing like ‘scholarly studies’ but just the ravings of some inconsequential journalists.  (Again, I am conveying my impressions of what happened, not the actual words uttered.)

Mr. Burnet asked Dr. Baglow if it is true that he wrote about a judge that he is guilty of statutory rape for having had sex with his baby sitter.  Now, again, I did not have the documents in front of me, so my understanding is highly imperfect and I would love to be corrected, so that the record will be accurate.  But, it seems that event though the babysitter was over the age of 16 (not statutory rape), the judge – as an employer of the baby sitter – was ‘an authority figure’ which Dr. Dawg thinks ‘bumps up’ the statutory rape thingy to 18, not 16.  And, Dr. Baglow would appear to have been highly critical of this and he appears to have blogged his criticism.  But, writing that ‘a man in position of authority’ was having sex with someone under the age of 18, as he asserted the judge had indeed done, this apparently did not imply, in any way, shape or form, that he was accusing that judge of statutory rape.  And while I can respect his opinion and his original blogging thereof, I must admit I was disappointed in how he tried to walk this bit back…

The post by Dr. Dawg called ‘Off with his head’ – and referring to Prime Minister Harper – was also brought up, both during the testimony and the subsequent cross examination.  While Dr. Baglow insisted this reference was satire, the fact that there actually was a real-life plot to behead our Prime Minister makes this assertion sound hollow, at best…rather, it would seem to (in my never-humble-opinion) a very thinly veiled sympathy and/or support for militant Islamist terrorists.  OK, it was never openly stated in the testimony, but, it hung in the air like a miasma which all parties present pretend is not really there…silent, but palpable!!!

Then the issue of Fern Hill came up….

….I just realized I’m at over 2k words and we have not yet hit lunch!!!

Let me break here and start part 2 from the ‘Fern Hill’ bit.

 

 

 

 

 

 

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40 Responses to “John Baglow vs Connie Fournier, Mark Fournier and Roger Smith: the ‘FULL TRIAL’, day 4 part 1”

  1. Maikeru Says:

    i>The discussion here is about his [Jay Currie] old blog, which Dr. Baglow says was quite good, …
    Jay Currie’s old blog was a bit of a cross-roads where a lot of unlike-minded people went to for ‘verbal fencing’ – not because they actually expected to convince anyone of the rightness of their point, but simply to bicker.

    Maybe it’s a guy thing…=i)
    I posted to Jay’s original site, and crossed s words with the Plaintiff more than once during the period as he became prone to bouts of dementia, and I actually posted to the FreeDominion ‘MsMew’ thread a direct question as to who was behind the pseudonym, and why that person had chosen to start that thread as a way of introducing themselves to FreeDominion members.

    I can assure you that until the true identity of MsMew was revealed by its owner, I was no more certain about the ‘John Doe’ behind that pseudonym than about other men who have posed as women online.
    Odd habit that.

    • xanthippa Says:

      Interesting.

      Dr. Baglow actually said named you (pseudonym only) as one of the posters who ‘certainly knew’ that Ms. Mew was, indeed, he.

  2. Delbian Says:

    CENSORED!!!

    This comment had been censored after I was notified that it could be actionable.

  3. markymarkincanada Says:

    Many people who are against the defamation laws or at least how they may be applied in this context cite “chill” as a rationale for that position. I see the point-but unregulated defamation could have an equally “chilling” effect, could it not? For example, if I go to a discussion forum and my political views are met with comments back that I’m a racist, or support apartheid, etc., and that shows up in search results on my name–would that not be a disincentive to my expressing my views? Curious what you think of that argument as a matter of principle. Putting it another way–there has been a lot said about individual rights and, in particular, the right to be able to speak freely–but doesn’t the individual not also have a right to not be damaged by malicious defamation (when proven)?

    • xanthippa Says:

      The remedy to bad speech is always more speech, not less.

      • markymarkincanada Says:

        I understand the principle and it sounds appealing, but when each of us gets into it from a granular perspective and applies it to ourselves, I’m not sure it holds up. If a search of my name brings up references to my being a racist or pedophile, etc., that doesn’t go away if I fight back with my own speech which gets added to the search results–and prospective employers/clients might well shy away from having anything to do with me, to my financial detriment. If that is correct, then the result is that a good number of people will not bother saying what they otherwise would say. I think there is a reasonable policy debate to be had here–what is the case for throwing out centuries of jurisprudence that have articulated a remedy for defamation (when proven)/does the nature of the internet change everything and, if so, how?. Are we talking the internet as a whole or only political debate that takes place under assumed names?

  4. Connie Says:

    If someone’s pseudonym said “Markymarkincanada is a racist”, how likely do you think it would be that ANY reader would take to google to find out your real identity? Do you really think it would affect your reputation?

    • markymarkincanada Says:

      Connie,in my view the actual facts and context are crucial to these things, and I was trying to stay away from anything close to what is being litigated. But let’s explore a few options and assume all are false statements:

      1. [insert real name] is a racist.
      2. [insert real name] has been disciplined for stealing client money (when the person is a lawyer).
      3. Markymarkincanada is a racist.
      4. Markymarkincanada has been disciplined for stealing client money (when the person is a lawyer).

      I think there ARE some obsessive types out there who will figure out real identity, plus in many cases many of us know who some of the regulars are in real life, and it may be that’s enough.

      In terms of what my personal opinion of what the law should be, I’d be disinclined to include #3 (within defamation) and very much inclined to include #2. #4 would depend on how likely it is that my assumed name is air tight, I guess the debate is around #1 and I’d probably be disinclined to include it. if the statement were more specific and said something more like “[insert real name] is a member of the KKK” that probably would tip it the other way for me.

      But I also think whatever is decided, it has to be reciprocal and consistent. If X is going to be considered to have defamed Y for calling her a “commie” than it must be a similar result if Y calls X a “Nazi.” There will be many areas of grey even with reciprocity.

      I think we also to weigh up whether someone is expressing a view in good faith (X REALLY does think Y’s choices align with that of the communists) or simply trying to injure the person, as would appear to be the case in #2 and #4.

      Because this is complicated, and because there is a lot of democratic good associated with a broad exchange of ideas, I like the idea of a non-partisan legislative or law reform study of this area, with submissions from interested parties, and a possible legislative rewriting of at least some of the law. Given the high costs of litigation, such a committee also could be charged with looking at barriers on both ends of lawsuits and perhaps some sort of preliminary review that would need to take place before an action could be commenced. Yes, that would amount to “regulation” so some will be against it on principle, but not all regulation is bad.

      So to your question: “If someone’s pseudonym said “Markymarkincanada is a racist”, how likely do you think it would be that ANY reader would take to google to find out your real identity? Do you really think it would affect your reputation?” No in most cases I’d be OK and I have been called that and it hasn’t affected my reputation thusfar. I have had a couple of confrontations where I’ve been threatened/intimidated with comments/tweets in response to my opinions along the following lines: “does MM’s employer know he spends work time online?” and “does MM’s employer know he harasses other lawyers; clients?” Those people do know my real identity. And they have “outed” others. It may or may not be defamation (and it MAY be, because there is a clear innuendo), but there also are many torts out there outside of defamation.

      • Connie Says:

        That was a thoughtful reply. I fully agree with your opinion that there needs to be legislative change.

        Have you read this position paper by the Ontario Civil Liberties Association about the proposed SLAPP legislation? http://ocla.ca/report-bill-83/

        They make a lot of great points, but their position seems to be that other torts could take the place of the tort of defamation. I’d be really interested in what you think of their take on this.

      • xanthippa Says:

        What if you HAVE been disciplined for stealing client money – should I not be permitted to speak the truth?

      • markymarkincanada Says:

        if the statement is true it is not defamatory and there is no restriction.

      • xanthippa Says:

        Ah, but that is not the law.

        The law of defamation says that even if the statement is true, I am presumed to have uttered it ‘maliciously’ and this ‘malice’ defeats the defense of truth.

        The onus is on me to prove that the statement was NOT made with malicious intent.

        Now, in the case of, say, discussion forum, whose operators are held responsible for each and every (unmoderated) post made by third, anonymous parties – there is no way these operators can prove – in court – the state of mind of the anonymous commenter. Thus, they cannot disprove malice – and therefore the truthfulness of the statement is irrelevant.

        THAT is the state of defamation law in Canada today – and THAT must change.

      • markymarkincanada Says:

        Thanks Connie–no I was not aware of that paper and am going to take a look at it now.

      • markymarkincanada Says:

        xanthippa, I am not an expert in defamation law, but have also understood that truth is a complete defense. The burden may be on the defendant, but if it is met and it is established that the statement is true, then the tort has not been made out. Will do some digging to verify or correct myself. Curious what sources you may have to the contrary.

      • xanthippa Says:

        Sources: sitting in the courtroom and hearing – over and over, from one case to the other to the other – the argument from the prosecution, and agreement from the judge, that ‘malice’ defeats the defense of ‘truth’.

        And, ‘malice’ is ‘presumed’ until proven otherwise.

        That is the state of the defamation laws in Canada right now.

        And THAT is why I argue that the law is unjust and MUST be changed.

      • markymarkincanada Says:

        When I read the position paper that Connie linked to I don’t think that what you’re describing is correct.

        >

      • xanthippa Says:

        I have no legal training, or do I profess to understand the intricacies of the law. I am simply observing what I have seen in the courtrooms over the last 4 or 5 years that I’ve been following this.

        And, each and ever time, the point comes up: if even a hint of ‘malice’ is not 100% disproved by the defense, then the truth is no defense.

      • markymarkincanada Says:

        I have legal training but don’t know this area. I also think that whatever regime you cone up with, there always will be people who abuse it. You can’t legislate decency or common sense. And is also is difficult to outlaw people misusing rules developed for good reasons for a bad reason.

        >

      • markymarkincanada Says:

        When the court of appeal first issued its decision I put up a post to ask the blogger and commenter community what people thought-there were a fair number of replies including from Connie and John:

        http://debatenotdefame.blogspot.ca/2012/06/open-thread.html

        John put up a link to a post on his old blog where he did a copy and paste of a primer on this area from a real expert, so you may want to check that out in terms of the general principles.

      • markymarkincanada Says:

        Connie, there are a lot of really good points in that position paper. I am curious if there are like position papers taking the opposite view, as I always like to consider all of the arguments before making up my own mind.

  5. CodeSlinger Says:

    MarkyMark:

    Connie raises a very important point here: the inestimable value of anonymity.

    Especially on the internet, where it is so easily maintained.

    As a rationale for limiting free speech, your argument falls flat on its face. Xanthippa nailed the counter argument perfectly: the remedy for malicious speech is more speech, not less.

    If I call you a pedophile, you can always respond “prove it or shut up!”

    But whether or not I am not allowed to say it, I can always achieve the same result by merely implying it.

    And then you have no real defence, because I made no actual statement for you to challenge.

    So, by your argument, should we then criminalize implication as well? Where does it stop? End well, this will not.

    But as a rationale for the right to speak anonymously, your argument is downright eloquent.

    As long as you remain anonymous, it doesn’t matter at all whether people believe unsupported trash-talk or poisonous innuendo about you. However, the substance of your arguments still stands in its own merits.

    Anonymity completely de-fangs the ad-hominem attack; defamation becomes a non sequitur; and the content of the message is decoupled from the identity of the messenger.

    Thus the marketplace of ideas yields the best quality of debate when speech is unrestricted by law and anonymity is protected by law.

    This is how the jurisprudence of speech, defamation and anonymity should change to reflect the technology of the internet.

    • markymarkincanada Says:

      I do not agree that it always works to give a rebuttal, for the reasons I already stated.

      If someone using an assumed name says something defamatory about me under my regular name, the fact that that person chooses to be anonymous does not do me any good. I agree though that if we both truly are anonymous, this all goes away, because this is all about real damage to real people. I do not think you can defame a truly fictional character.

      • Anonymous Says:

        Well I suppose I can see your point, but I have difficulty imagining reasonable people taking the unsubstantiated allegations of a fictional character seriously enough to do significant damage to a real person’s reputation…

  6. CodeSlinger Says:

    MarkyMark:

    You seem to agree with the form of currenet defamation law, to the extent that telling the truth about a person is defamatory if it damages that person’s reputation.

    This is a travesty of justice which must change.

    No one should ever face a penalty for speaking the truth – unless that truth is a bona fide secret which they have sworn not to divulge.

    This aspect of defamation law has nothing to do with the internet per se, but it is a serious flaw by virtue of which this body of law lends itself to persecution and injustice.

    And an unjust law is no law at all.

    • markymarkincanada Says:

      Not sure where you get that–if it is true it is not defamatory and I am not suggesting that that be changed

      • CodeSlinger Says:

        Warman vs. the Fourniers et al., for one.

      • Steve Ridgeway Says:

        CodeSlinger is wrong. The defamation primer you reference above says

        “The law of defamation must strike a fair balance between the protection of reputation and the protection of free speech, for it asserts that a statement is not actionable, despite the fact that it is defamatory, if it constitutes the truth or is privileged or is fair comment on a matter of public interest, expressed without malice by the publisher.”

        Truth is a defence.

        A defendant in the Warman vs. the Fourniers et al. claimed that the plaintiff was a homosexual fascist who was part of a conspiracy that controls the Canadian political and judicial systems. And CodeSlinger uses this to prove that truth is no defense!

      • xanthippa Says:

        Re-read your statement: it includes this: expressed without malice

        Truth is NOT a defense IF malice is present.

        And malice is presumed – it must be dis-proven by the defendant by proving what state of mind they were in when they made the statement.

        In the case of anonymous posters who put comments onto their site, the Fourniers had no proof of these anonymous people’s state of mind (since they did not know these people) and thus they were physically incapable of proving that these anonymous people did not express themselves with malice. Thus, they could not use truthfulness of the statements as defense because the ‘malice’ provision defeats it.

        In addition, you are not accurate: nobody ever claimed that the plaintiff was a homosexual.

        Plus, I would greatly appreciate it if you did not repeat the accusations that were made because, from what I have seen in the courtroom, repeating what was said in court can be actionable.

      • markymarkincanada Says:

        Are you sure? I think the malice reference applies only to the last of the listed items (fair comment) and not to everything on the list. Will check some other sources.

        >

      • xanthippa Says:

        I heard Dr. Baglow’s lawyer in court, just last week, assert that it applies to all of them.

      • markymarkincanada Says:

        Please take a look at http://www.pepperlegal.com/defamation.htm

        >

      • xanthippa Says:

        All I can do is report what I’ve heard argued in court. And the argument made by Mr. Burnet was that malice negates all other defenses.

      • markymarkincanada Says:

        If he is who I think he is, he seems very smart and knowledgeable so I doubt he would get something wrong–I am having trouble squaring what you say he said with sources like this:

        http://defamationlawblog.ahbl.ca/files/2012/05/Defamation-Defences.pdf

        Defence of Truth
        Truth (also referred to as “justification”) is a complete defence. However it is an
        exacting defence and operates under rigorous rules. If a statement conveys a
        defamatory meaning there is a presumption that the words are untrue. The burden of
        proof is on the defendant to call evidence that establishes the words are accurate. A
        wholly unfounded plea of truth – and especially where it is maintained unsuccessfully
        through to the end of trial – can result in a higher level of damages.

      • xanthippa Says:

        That is what I understood him to have said.

        However, I have no legal training and cannot be sure I understood properly. All I understood is that anything that can be considered to be ‘comment’ cannot rely on defense of truth if it is made with malice.

  7. Voice of Reason Says:

    Just like the other case …. proper use of the DELETE key and a short polite apology could have stopped this whole cluster at the very beginning.

    But no, some people have to pursue their desire to become a martyr for the “cause”.

    I guess the meaning of “principled conservative” means never having to say you are sorry.

    • Doggonit Mad Says:

      THis is crap. The plaintiff picked a fight in order to try to trap the defendants. What was said about “him” is nothing compared to what he has said about others. Who is funding this witch hunt on his part, which many on the left think is ridiculous?

  8. CodeSlinger Says:

    Voice of Reason (sic):

    Saying you’re sorry when there is nothing to be sorry for, simply for fear of unpleasant consequences, is called cowardice.

    No one should ever face a legal penalty for speaking the truth – unless that truth is a bona fide secret which they have lawfully sworn not to divulge.

    That is the principle which is at stake, and it is essential to the proper functioning of a free and just society.

    But, for some reason, you keep ignoring it and advocating cowardice.

  9. Connie Says:

    I’m not interested in debating with any douchebag trolls, but I think I can clear up the thing about truth/malice.

    If you make a factual statement like “he stole money from his clients” and you can prove it to be true, you are good. However, as we know, most online debate consists of comments, not facts.

    If you say “he is a thieving dirtbag”, that is a comment and you must have a *factual basis* for your comments, AND you must not be motivated by malice if you want to use the defence of fair comment.

    The problem comes when you have to prove the facts relied on in court. If an anonymous poster doesn’t specifically give the facts in the same post like, “This dude stole $15,000 from me so he is a thieving dirtbag”, nobody can testify as to what facts the poster was relying on. And, in any case nobody can testify to the anonymous poster’s state of mind to disprove malice. You are screwed on both counts.

    If you write, “This guy stole from my neighbour so he is a thieving dirtbag”, then you’d better be ready to get the neighbour to come to court and testify that he stole from him or you can’t prove your factual basis. Got a newspaper article to prove it? Sorry. In Warman v Fournier, newspaper articles were considered hearsay.

    The comment here that was deleted earlier is a good example. Delbian made a comment about a public figure. It was clearly a comment, but it was clearly defamatory because it accused the guy of criminal behaviour. It was also not based on any provable fact. If that public figure had chosen to sue Xanthippa, she would have been screwed.

    As far as impugned words from Warman v Fournier, it’s significant when looking at the law, to note that an anonymous poster can come online and make up ANYTHING about the words involved in that case, and we’ll go to prison if we correct the record. The legal system should be transparent. Even a murderer can tell people why he is being punished.

  10. CodeSlinger Says:

    Connie:

    Thanks for the explanation.

    The more I learn about Canadian defamation law, the more convinced I become that this body of law is deeply flawed.

    To criminalize a motive – and a presumed one at that – is always just plain bad jurisprudence.

    The resulting laws are not just easily abused, they seem hand-crafted to invite abuse.


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