Thoughts on the Ruling in Baglow Vs. Freedom of Speech

For the background on this case, please see here.

For the full ruling, see here.

Prior to the closing arguments, I begged John Baglow to, please, stop this lawsuit, even at such a late date.  I promised I’d help him fundraise to cover his costs if he, even at this point, called the whole thing off.

Why?

Because I firmly believed that any ruling on this case would necessarily be a loss for freedom of speech and a disaster for all of us who socialize on the interwebitudes!

And I was right!

Yes, Connie and Mark Fournier, as well as Peter O’Donnel, have won because even though Madam Justice Polowin found the comments to be defamatory, she also found them to be fair comment and dismissed the case.

So, yes, the Fourniers and POD have won.

But it is a bittersweet victory for them and a decided loss for freedom of speech in the internet.

Let me explain why…

First, let’s name the elephant in the room:  the process is the punishment.

Baglow has dragged the defendants through the court system for years and cost them tens, if not hundreds, of thousands of dollars in court costs and lost time/productivity.  Yet, in her wisdom, Madam Justice Polowin did not order Baglow to pay the Fournier’s court costs.

Not having any training in legal matters, I find this mindblowing.

If the words were deemed to be ‘fair comment’, as Madam Justice Polowin had ruled, why should the Fourniers and POD have had to pay tens of thousands of dollars in legal fees, travel and accommodations in order to defend themselves against what she has ruled is a baseless accusation?

And why should they have to pay half the costs of a court expert in internet communication:  an ‘expert’ who is so very up on internet communication and customs that he testified that he’s never ever heard of Godwin’s Law?!?!?

Really?

An internet communication expert who’s never heard of Godwin’s Law?

Expert?

Come on, this is a joke!!!

Even my mother-in-law, who needs help logging on to Facebook, has enough internet savvy to know Godwin’s Law, aka reducto ad Hitlerum…

But, that is besides the point:  the bitter lump of coal (actually, coal is not that bitter, but you know what I mean…) here is that while the defendants may have been found innocent, but they still get punished by not having their costs covered and having to pay for an ‘expert’ which would not have been necessary had the judge had even high-school level knowledge of the online world around her.

Second, I most vociferously disagree with some of her rulings on a the various issues raised in the case, because they will, in a very real sense, cause a serious chill in online communications.  It will probably take me multiple readings to fully analyse the significant damage this ruling poses to freedom of speech, but, one of her rulings practically jumps out at me.

This is the ruling that providers of an online discussion space are considered to be the publishers of what other people post to these fora, whether this is moderated or not.

This spells a disaster for every blogger that permits comments and makes the running of un-pre-moderated discussion fora a very serious liability danger:  most will probably be limited to permitting only politically correct speech and no discussion of controversial topics whatsoever.

In reality, Madame Justice Polowin ruling means that, for example, WordPress or Blogger, by providing a platform for publication with the aim for people to come there and exchange ideas, that this makes WordPress or Twitter etc. the publishers of that communication and just as liable for the words published on their platform by third parties as if they themselves had written it.

Just think about the impact this ruling will have…

Sorry, I’ve got to leave this here for now….you see, dear reader, I suddenly have this terrible pounding headache….

Advertisements

38 Responses to “Thoughts on the Ruling in Baglow Vs. Freedom of Speech”

  1. markymarkincanada Says:

    I respect your views on this issue. In fact, I respect the commitment to principle by all of the litigants as well-most people in the position of the defendants would have backed down and pulled the comment, and most people in the position of the plaintiff would not have committed the time and expense to the action. But I would respectfully suggest that to the extent that the decision is an application of existing law and not a rewrite of that law, I am not surprised. A sea change in the law in this area would more likely come from the legislature than from a court adjudicating a specific dispute. (And I might add that most conservatives typically don’t even want judges “legislating” from the bench so they would change my “would” to “should” in that sentence.)

    I can’t really comment on the costs issue other than to say either you respect the basic system and the integrity and skill of this judge or you don’t. She as an unbiased adjudicator listened to many days of evidence and had the opportunity to weigh credibility, demeanor, etc. If she had concluded that this was a frivolous or mischievous lawsuit, presumably the ruling on costs would have been different. But I confess I have no sense as to how costs normally are awarded in defamation actions where the outcome is that the words were defamatory but OK due to fair comment, given the lack of malice. If you tell me that normally defendants are awarded costs on such a fact pattern, then this would stand out. I recall that because of the importance of this case to online publishers and commenters, it was I who initially suggested that funding activities be pooled in a non-partisan way. Fern Hill picked up on it and that rebounded on her both because she is firmly in one camp (whereas I suppose I’d fit in the court’s centrist camp) and because she is more high profile.

    I am not sure I agree with you in terms of the practical consequences that you fear. I think the bottom line is these sorts of cases should not get this far and I suspect there won’t be a next time.

    • xanthippa Says:

      I hope you are correckt, MarkyMark, that there won’t soon be another case like this. But, when the process becomes the punishment and people found innocent have to bear the cost of years of litigation, this gives wealthy people who want to squash the freedom of speech of poor people the incentive to litigate.

      As for the incrementality of the law versus big changes in the way the law is applied: I think this is a huge change in how the law of defamation is being applied.

      In the past, a magazine would have an editor go through all the submissions to a magazine and edit them until the magazine would ‘stand by the article’. Therefore, the magazine would be just as liable for the defamation as the writer because by permitting it to be published after reviewing it, they are tacitly endorsing it.

      If that same writter had gone not to a magazine, but to a printer who did not read the article but simply printed it, that printer would not be liable for any defamatory words that might be found in the article.

      In terms of the internet, if somebody sends me a post and asks me to publish it, as I sometimes do permit guest-posts, I fully accept that if I go on to post it, I am publishing it and am equally liable, just as the magazine which had edited the article before publishing would be.

      But, if I simply provide an online means for other people to publish their views, without me seeing them, then I am like the printer in the above example.

      This is not a frivolous claim or a misrepresentation of how this already works on the internet. Under this ruling, because WordPress (which I happen to be using) is providing an online place with the purpose and expectation that it will bring people to post their ideas and get into a discussion, they would be liable for every word posted in every blog on WordPress.

      Same with Twitter.

      And Facebook.

      And every other online forum.

      Yes, I know I am not educated in legal matters, but, to me, this seems intuitively wrong. How far back do we take it? Do we sue Microsoft for ‘facilitating publication’ if somebody used their software to prepare an online pamphlet that defamed them?

      I thing this ruling is not ‘along the lines’ of current legal norms. The very reasoning to reverse Justice Annis’s dismissal of this case was in order for the law to be made from the bench!

  2. markymarkincanada Says:

    Xanthippa,

    The process is arduous and expensive-no argument there. I am assuming that Dr. Dawg’s costs were on a par with those of the defendants and he will be responsible for his own costs as well. I assume that none of these litigants really had the resources to fund this litigation, and yet none of them seemed to have been deterred by that clear economic barrier, which is very real. I don’t know whether there was a disparity in economic power among these litigants. But either way I agree that economic barriers to civil litigation are very real and there are other (more extreme) examples.

    Your argument about the publisher vs. the printer is very interesting. I note that in this case the plaintiff didn’t sue the platform. And if I recall correctly, Canadian Cynic used a defamation judgment against Patrick Ross to have your “printer” analogues take down defamatory material but he didn’t sue them directly. So I am not sure you are right that, say, Twitter would be responsible. The easiest way to find out would be if they are made a party to a future defamation action. But somehow I don’t think they’d be viewed as the publisher.

    As for what the Court of Appeal had in mind, I reproduced some of that decision in this post here:

    http://debatenotdefame.blogspot.ca/

    In particular:

    [27] In this case, the parties have put in play a scenario that, to date, has received little judicial consideration: an allegedly defamatory statement made in the course of a robust and free-wheeling exchange of political views in the internet blogging world where, the appellant concedes, arguments “can be at times caustic, strident or even vulgar and insulting.” […]
    [28] Nonetheless, although the respondents come close to asserting – but do not quite assert – that “anything goes” in these types of exchanges, is that the case in law? Do different legal considerations apply in determining whether a statement is or is not defamatory in these kinds of situations than apply to the publication of an article in a traditional media outlet? For that matter, do different considerations apply even within publications on the internet – to a publication on Facebook or in the “Twitterverse”, say, compared to a publication on a blog?

    [29] These issues have not been addressed in the jurisprudence in any significant way. The responses may have far-reaching implications. They are best crafted on the basis of a full record after a trial – at least until the law evolves and crystallizes to a certain point – in my view. A trial will permit these important conclusions to be formulated on the basis of a record informed by the examination and cross-examination of witnesses and quite possibly with the assistance of expert evidence to provide the court – whose members are perhaps not always the most up-to-date in matters involving the blogosphere – with insight into how the internet blogging world functions and what may or may not be the expectations and sensibilities of those who engage in such discourse in the particular context in which that discourse occurs. […]

    [36] No expert evidence was tendered concerning the expectations and understanding of participants in blogosphere political discourse. There was simply no evidence as to what the right-thinking person in this context would consider would lower the appellant’s reputation in the estimation of a reasonable reader; indeed, ladening the record with the possibly contentious type of expert evidence needed in a first-impression case of this nature, and then seeking summary judgment, would be counter to the rationale underlying the simplified procedure. The motion judge placed considerable weight on Mr. Smith’s explanation for the comments he made in arriving at the decision that the impugned statement involved comment rather than fact and was, therefore, (a) less likely to be taken as defamatory, and (b) the basis for a fair comment defence. Yet Mr. Smith was not cross-examined on the various important subtleties of that evidence, nor was he cross-examined on the issue of malice in the context of fair comment. These issues need to be threshed out at a trial. […]

    It seems to me that the trial carried out that mandate. I don’t think the Court of Appeal suggested that a trial court make policy, but rather that they consider the application of defamation law in the online context.

    I’m not suggesting that what you and the defendants argue necessarily is wrong from a policy point of view, but more so that that sort of policy decision is best left to the legislature. It is within the power of our legislators to pass a law to the effect that defamation law or parts thereof don’t apply in whole or in part to the blogosphere, etc.

    • xanthippa Says:

      MarkyMark,

      I do agree with you that the legislature would be a better place to address these things than a courtroom would be.

      But, I disagree that it would be a good thing to accept that governments have the authority to regulate speech on the internet.

      Yes, unlike any of the parties (even the CCLA intervenors), I am a free speech absolutist. (And a duly registered member of the Missionary Church of Kopimism.)
      This means:
      * All knowledge to all
      * The search for knowledge is sacred
      * The circulation of knowledge is sacred
      * The act of copying is sacred

      As for being a free speech absolutist, I derived that position from the first principle: you own your self, aka the principle of self-ownership. All limitations on speech are, in my never-humble-opinion, unreasonable.

      Of all the want-to-be regulators of speech, the government ought to be the last one we, the people, ought to permit to usurp onto itself the authority to regulate speech.

      All speech.

      So, while I do asknowledge that the legislature would be a better place to address this than the courts are, I still do not think governments have any business addressing it at all.

      Especially in a borderderless, non-physical space such as the internet.

      Let’s we presume that minimalist government is a necessary evil, but, as long as it limits itself to physical protection of the citizenry from aggression, foreign or domestic, and protections of such natural rights as can be derived from the principle of self-ownesip, it is something we ought to tolerate.

      In order to protect our physical selves, they would need to secure/control some geographical area of meat-space. I’m willing to agree to that, if I must.

      But here, the government has taken it upon itself to regulate non-meat-space.

      And that, in my never-humble-opinin, is an unreasonable over-reach and ought not be tolerated.

      Perhaps where I agree with you is that we ought to pressure our elected representatives to enact laws forbidding any kind of regulation and/or judicial authority over the internet. Rolling back what is already there and banning any future incursion!

      But – I’m not holding my breath…

      • markymarkincanada Says:

        Xanthippa,

        I respect your views as a matter of principle.

        But as a practical matter defamation law exists by virtue of the common law (as opposed to it being in place because the legislature passed a law). In any of these disputes, all that a court can do is apply that law to the facts, possibly with some incremental change if the facts present unique issues that haven’t previously been considered. For those who feel that the body of defamation law as a policy matter is inadequate for online commentary, the legislative route is the only way to go. And I recall Connie being interested in that option–but in this case once FD decided not to take down the comment, defending the action was the only way to go.

        One other thing to throw into the mix is that disputes can be settled by alternative dispute resolution such as mediation and arbitration rather than by the courts. In certain circumstances that allows for a faster and cheaper result, but the parties all have to agree to it, and they also have to agree on the terms of reference put before the decision makers.

        I see in a lot of comments on both sides of the partisan divide an unwillingness to actually accept the law as it is. To that, I say again that the best route is to lobby for legislative change. I believe that Connie had the idea that even if defamation law were not rewritten, an extra initial step should be created by way of something analogous to a preliminary review (and beyond the ability to seek a motion for summary judgment) which would filter out cases that have no business going to trial. That would get rid of cases that waste not just the court’s time but the defendant’s time and money.

        Let’s not forget that unlike a criminal case, there is no state funded public defender to draw on. Legal aid may or may not be available to defend one of these actions-I looked into this for someone where it was a multi-jurisdictional dispute, and it seemed that legal aid in fact was not an option. While I understand your over-arching beliefs in this area, if there were certain reforms that streamlined the dispute resolution process for these sorts of claims and/or dealt with the economic barriers to defending oneself (e.g., see Patrick Ross, below), that might deal with a good chunk of the problem here. Of course others would say that as a society we shouldn’t be allocating resources to such a thing when people should be responsible in not defaming others, sometimes when they know full well they’re doing it.

      • xanthippa Says:

        MarkyMark,

        I agree with most of what you say, with a few ‘little’ niggles.

        Yes, I am a fan of the common law: which is why I chose to, if you excuse the terms, an adopted cild of the Magna Carta. But, nothing (except, perhaps, for me) is perfect, even the common law tradition. And, the one thing abut the common law tradition which I found imperfect was the defamation bit: it was understood to be there to protect bluebloods from criticism by us sefs.

        It seems that this is still how it is mostly being used: by the elite, to silence criticism from us the unwashed masses…

        But, I digress.

        You have not addressed my major point in the least: common law was always practiced exclusively in meatspace, never in cyberspace. This is due to the fact that when common was developed, we only had meat-space…but we understood the jurisdiction of any government to be limited to the control within a geographical area only.

        In our times, geographical governments have usurped onto themselves the power to regulate, adjudicate and punish activities wich take place in cyber-space, not meat-space.

        Therei is no common-law tradition for this.

        And this is what I consider to be an outrageous and illegal over-reach by our governments.

      • markymarkincanada Says:

        Xanthippa,

        You are correct and I did not respond to that. I want to ask one of my colleagues about the jurisdictional point that you raise, as I am not sure of the answer. (I don’t give legal advice in these comments but if I weigh in on that sort of a point I like to at least have a proper foundation of legal understanding.)

        The only policy point I would make to respond to your concern is that if someone is in bad faith going to make an effort to defame me in unambiguous terms, and in a way that is consequential and causes me economic loss, it may be that the best way to achieve that result is to do it online. If nobody has jurisdiction then I have no rights or any possible remedy. If defamation is to remain actionable, then that “gap” seems like a bad result.

      • xanthippa Says:

        MarkyMark,

        it seems to me that more speech is the best remedy to bad speech.

      • markymarkincanada Says:

        In many cases that probably is the best way to deal with the situation. But consider facts where someone is trying to put false and damaging information about me out there so it is captured by Internet search engines, and thereby by prospective employers, lenders and others. This’s people will view me negatively solely because of that malicious misinformation. I’m not sure that more speech does the trick. More speech seems only to highlight the issue and it can never be removed from the online search engines without having a defamation judgment and taking it to third parties to get rid of it (or hiring one if those people who can manipulate search results by getting other stuff out there about you so the bad stuff isn’t the top hit). I suppose this isn’t really a political speech or opinion issue though but something quite different.

      • xanthippa Says:

        I beg to disagree.

        Even if someone is forced to take down defamatory material from their own site, that will not affect its availability on the internet.

        Once there, the defamatory material is always there.

        Right or wrong, the legal remedy here may have financial penalties, but it will not alter the fact that this information will always be available on the internet. So, while I understand that motivation, in a practical sense, a court ruling cannot affect a remedy in cyber space the way it could in meat space.

        The most one could accomplish using courts as a remedy in cyberspace is to get the Streisand effect: which will ensure the complained-of words will come up in search engines much more readily than had they been ignored.

        So, let’s not pretend that this is about a remedy: it is about extending government control from meat-space into realm of electrical impulses, of thoughts and cyberspace. About what electromagnetic impulses may stimulate our brains. Which is what governments always want in order to render their sheep to be obedient and non-thinking.

      • markymarkincanada Says:

        You may have convinced me. And if some rogue did that to me I suspect that I’d have another remedy anyway as the facts are so extreme that there may well be multiple torts.

  3. Patrick Ross (@OutlawTory) Says:

    What blows my mind about this case is Baglow’s base hypocrisy. When Baglow speaks of times when he wrote something defamatory and retracted it, one of those times was actually in reference to myself.

    Does that surprise you, Mark?

    The other I’m aware of was in regards to Ezra Levant. Baglow wrote some things about Levant’s management of the Western Standard that had been fodder for a previous defamation suit by Levant. When Baglow received a libel notice from Levant he promptly withdrew the blogpost, and wrote a blogpost about why he had withdrew the blogpost.

    But then a funny thing happened. Baglow’s readers, incensed that Baglow withdrew that blogpost, began repeating the defamatory claims in the comment section of the second blogpost. So Levant wrote to Baglow again, instructing him that he expected any comments repeating that or other defamatory remarks should be removed. Baglow balked at the idea that he could be held responsible for the conduct of his commenters and refused to comply.

    I spoke with Levant about this over the phone. (It was a Sunday afternoon.) He simply told me he didn’t regard these anonymous commenters as worth his time to pursue.

    Years later, he sues Connie & Mark Fournier for something a user of their message board posted on that message board.

    In short, he sued the Fourniers for something that he himself had previously refused to take responsibility for. In my opinion, that’s beneath contempt.

  4. John Baglow Says:

    Poor Patrick can never seem to get his facts straight, so here they are, for the record:

    http://drdawgsblawg.ca/2010/02/retraction.shtml
    http://drdawgsblawg.ca/2010/02/retraction-finale.shtml

    The only thing that Patrick appears to have gotten right is that Ezra Levant was involved. Progress!

    • Patrick Ross (@OutlawTory) Says:

      Well, my memory is suitably refreshed. I stand corrected that the original blogpost was about this so-called “Fireside Chat.” I now remember far more clearly that defamatory comments made by Baglow’s commenters were specifically about the Western Standard, containing claims which I researched at the time and found to be untrue.

      So aside from that singular detail, all John’s done here is confirm that my overall version of events is, in fact, quite true.

      I daresay good show, old boy. And no, I’m NOT scratching your belly for you, So don’t even ask.

      • John Baglow Says:

        Not to prolong this discussion, but I remove defamatory comments as they appear. The second letter from Levant’s lawyer, and readers may check my earlier links for themselves, demands that I remove my entire blogpost and all comments that referred to it. I said nothing doing, and Ezra’s legal team backed off.

        This had nothing whatsoever to do with any libellous comments at my place, because the one or two such comments were removed promptly, and hence were not even mentioned in the letter from his lawyer. Nothing to do with “balking” at removing libellous comments, which was the nub of Patrick’s absurd comment here. The balking was precisely as I have described.

        But here’s the funny thing. The second letter from Ezra’s legal team noted, inter alia, that I had merely struck through the language in my original post that he had complained of, rather than excising it. That, thundered his high-priced lawyer, was still “publication.” OK, I said, and removed the language entirely.

        Now, fast-forward to last year, and the lawsuit that Ezra lost big to Khurrum Awan. Here is paragraph 156 of that judgement: “The defendant relies on an ‘Internet practice’ he described, involving overstriking the incorrect text rather than removing it.”

        You want hypocrisy? Good grief.

        By the way, I did once receive a so-called Notice of Libel from Patrick, in which, as I recall, he had reversed “plaintiff” and “defendant,” as I gently pointed out to him. He was objecting to something that I can’t even remember, but I removed what he considered to be a libellous post about him. That’s what grown-ups do.

        As I noted earlier, the only fact that Patrick got right in his comment above was that Ezra Levant was involved. The rest is pure fabrication, and my links prove it. But last word to the basement-dweller. This is simply too silly for me to pursue any longer, and detracts, I think, from the main purpose of this thread.

  5. peterodonnell Says:

    From my perspective, Xanthippe, this verdict is mildly encouraging and at least it does no harm to the cause of free speech, although as you say many might be reluctant to take a very firm stand if they feel that they have to pay costs regardless of outcome. I don’t think our principal adversary in other legal matters (not a reference to this case) would go for that proposition, do you?

    For me it was worth the time and expense to stand up for our right to engage in robust debate. Imagine if that started to happen on such issues as climate change and social policy. Of course, it happens in certain limited circles, but those quickly become echo chambers ignored by most of the voters and all of the elected MPs (it would appear).

    For that reason, possibly, we now have this odious mess called C-51. If ever there was a time for the Governor General to step in and dissolve parliament, this is it. All parties should go to the voters and get better guidance on what the public really want, and that needs to be informed by the fullest possible debate. I am certainly thinking that the CPC base should carefully consider their options. Vote for individual candidates if they give assurances of substantive changes, otherwise, consider voting Libertarian or perhaps some other option.

    I wish Harper would catch on that he is apparently being manipulated by a hidden power elite with a very obvious agenda that has nothing much to do with conservatism. Chinese style control of the internet is pretty far from what 99% of conservatives want, or at least should want. Even the NDP, who might be quite delighted with such a tool for their tool-box, seem aghast by C-51 but I think that’s because they realize how it could be used by conservatives against their client base (environmentalists, native groups etc). Fair enough too, it will be and it should not. Neither should it be used against dissident conservatives, and one suspects it already has been given a pretty fair trial run. Either that, or Ottawa is a town of many, many coincidences.

    So, go forth from this place and oppose C-51 with your dying breath. After reading it, I was in a shate of stock, well day tripping anyway.

    • xanthippa Says:

      Peter,

      I am not hapy with C-51. It seems to me to be the wrong way to go. We have current laws that could be applied to a much greater effect, but which aren’t. Of course, we have international laws, the legality of which I question, but, since Canada has agreed to be bound by them, they ought to be applied to the fullest.

      This, of course, is the reference to the Geneva Convention: if we had applied it appropriately to terrorist (like, say, Omar Kadr), we would have tried those who did not execute him on the spot as a militant hiding among a civilian population. This would have been the only way the Geneva Convention, which attempts to incentivise oldiers to not hide among the civilian population (giving them POW protection) in order to protect said civilian population. This was a bitter lesson learned from WWII. I used to visit the former town of Lidice regularly, so I am acutely sensitive to the danger militants hiding among civilian populations pose and understand why international law strips such militant of all their human rights and demands their execution without a trial, on the spot.

      We should remember that lesson and demand that terrorists hiding among the civilian population be treated properly under this existing law!

      As for your first question: no, I do not think this would discourage champagne socialist (again, not referring to this case) who have an inflated sense of self and consider themselves to be a sacred warrior against all they disagree with. Sure, such a person may consider the potential money to be a perk, but I don’t think it is their primary motivation: their inflated sense of self righteousness is.

      And, they tend to come from the elite, earning much higher salaries than an average Canadian: had their income been ‘average’, they would have no time for their self-aggrandizing endeavours.

      To the contrary: I suspect that not facing a financial penalty should they loose will only encourage them to bankrupt their ideological opponents, since their own financial means are much larger.

      The fact that costs were not awarded to the side that was found to have been in the right means that the process itself becomes a punishment for holding opposing ideological views from what the rich elites in our country do. In a way, it is the ‘traditional’ application of the law of defamation under common law: to keep the ruling class ruling and the peasants silenced.

  6. peterodonnell Says:

    No, I meant that defendants would be less likely to go the distance if they thought they would certainly never be awarded their legal costs even if they were vindicated. I am sure the financials will not deter those who seek to punish since they would probably have that part covered in advance. Poor people make rather infrequent censors, in my experience.

    • xanthippa Says:

      Ah, yes!

      Sorry, Peter, I misunderstood!

      Yes, of course, I agree with you: knowing that the process has become the punishment which will ruin us and make sure we can’t afford to pay for our children’s education and drain our retirement savings will shut us peasants up.

      And that does not mention the disaster this could spell to our retirement savings: us peasants know that without having saved for our retirement ourselves, we will starve in the gutter while our persecutors have platinum-plated indexed pensions that we have paid our taxes to provide.

      I can feel the chill setting in myself.

      For example, I have had the rest of the accounts of the trial ready to publish months ago, but have been waiting for this ruling to see how much I will have to self-censor my account, based on this ruling. And now, I am doing some heavy edits to these accounts precisely because I fear that if I were to report all the words spoken in the courtroom, I would be the next defendant.

      …and people wonder why I report more on what was worn in court than on what was said!!!

  7. peterodonnell Says:

    The problem seems complex to me. Canadians are generally comfortable and unless they want to discuss the most contentious matters, untroubled by concerns about free speech. You can continue to thunder against any right wing politician you dislike, immune from negative consequences, but I do accept that some elements of the left are now coming under the Hal-like stare of the surveillance state. The half-crazy theme is well represented too.

    Here the problem is that many conservative Canadians have long memories of protest movements being employed for revolutionary purposes and to help the USSR with its foreign policy objectives. So there is a reflex, like the one to crush the Liberals no matter what, to stifle leftist dissent. And frankly, you have to wonder what would really work, once people have protested something and the legal process says that project (such as a pipeline) can go ahead, then some people get very frustrated with those who continue to break said laws and continue with their disruptive protests.

    The answer of course is to have a government that can balance all interests but many voters do not want that, they support one side or the other.

    Meanwhile, as far as the clamping down on “right wing” dissent is concerned, that seems to be more the project of what one might term a “state within the state” because in our own case, and I am sure in Ezra Levant’s estimation, these lawsuits do not emanate from either federal or provincial governments, but they do come from entitled elitists who speak voluminously about “Canadian values” as though they were appointed to enforce them. And Canadian values can be almost anything these days depending on who announces them, however, the traditional meaning is progressive values. Harper’s patched together blue template is somewhat disingenuous and somewhat accurate, I suppose, if you consider Canada to include places outside the 416, 613, 514 and 604 area codes.

    So what am I saying? I think it is this — overall, Canadians are too comfortable to become either revolutionary or counter-revolutionary. This is still very much a “don’t rock the boat” sort of country with a very empowered and entrenched elite class who (as I have seen throughout my life) truly believe that they are a cut above the rest of humanity. In my local bookstore is the sign, “The world needs more of Canada.” This factoid may be largely unrecognized in many other developed countries. Of course it may strike people in the third world as apt, although they would settle for emigration to any developed country (and they do in their thousands do so every day).

    We won’t see anything here like Solidarity, not because there is nobody like Lech Walesa or even Pope John Paul II, but because there are not very many frustrated dockworkers. Not at $150,000 per annum.

    However, I remain hopeful that the conservative base will finally see that this government is doing more harm than good for the cause of small government and civil liberties. Those should be the guiding principles of any conservative government or opposition. It was probably more fun to be in opposition. At least then the people doing bad things were not your fellow conservatives, at least self-defined, I think they missed a few seminars at the Buckley Institute.

  8. CodeSlinger Says:

    Xanthippa:

    I couldn’t agree more that state “regulation” of speech is illegitimate.

    There are, of course, crimes which are committed by means of communication – possibly in the form of speech. But every legitimate concern the state has with the content of speech or any other communication is already covered by laws relating to wrongful or criminal deception. That is to say, fraud.

    Existing fraud law presumes that the deception is carried out for financial or other personal gain. This need only be widened slightly to include deliberate and malicious harm.

    All of libel and defamation law that would not be rendered redundant and unnecessary by this change is illegitimate to start with, exactly for the reason you say.

    It serves no purpose other than to protect the rich from the criticism of the poor.

  9. CodeSlinger Says:

    Xanthippa:

    I couldn’t agree less with your stance on non-government militants hiding among the public.

    What else can they do?

    I do understand your point about Lidice, but that is a concern from a previous era. All such concerns are rendered obsolete by modern drones that can recognize your face and kill you from five miles in the air.

    If freedom fighters don’t hide among the public, they have no chance whatsoever.

    And if freedom fighters have no chance, then the power of the state is absolute.

    And tyranny is complete.

    • xanthippa Says:

      CodeSlinger,

      the difference in our opinion boils down to what we consider to be ‘legitimate war’, for lack of a better term.

      One person’s ‘freedom fighter’ is another person’s terrorist.

      Whether ‘partisans’ during WWII or Jihadis now, once they implement violence and then melt into the civilian population and use them as meat shields, they must be stripped of their human rights and killed with the greatest prejudice.

    • CodeSlinger Says:

      Xanthippa:

      Exactly! One man’s freedom fighter is another man’s terrorist.

      And that is precisely why your argument serves only the totalitarian state.

      Make no mistake: when the day comes, on which freedom fighters are fighting for your rights…

      the state will call them terrorists.

      • xanthippa Says:

        No, CodeSlinger, no.

        I do not believe that taking up arms and hiding among the civilians is an appropriate way to fight for one’s freedoms.

        It is not the end that excuses the means, but the means that define the end!

        Any ‘freedom fighter’ who takes up arms, then hides among civilians, will not bring about the kind of ‘freedom’ that I would recognize as such!!!

      • CodeSlinger Says:

        Xanthippa:

        Well, what alternative do they have?

        If they don’t use all possible stealth, including masks and hiding among the public, how do they avoid getting killed by drones that can recognize their faces from five miles up?

      • xanthippa Says:

        CodeSlinger:

        Masks – no problem.

        Hiding – no problem.

        But among civilians – big problem!

      • CodeSlinger Says:

        Xanthippa:

        But that’s just my point.

        The power of the modern surveillance state is such that there is no place to hide, except among the public.

        Just as the invention of firearms forced a redefinition of cowardly conduct in combat, so does the advent of ubiquitous surveillance.

      • xanthippa Says:

        Sorry, CodeSlinger, I’m not buying.

        My actions, my risk.

        Sure, the risk is greater to me than before, but, that does not diminish the damage hiding among civilians would do to them.

        So, either non-violent means are necessary (thus not becoming a combatant) or better shielding when hiding. Using unsuspecting meat shields is not acceptable.

        The means define the end.

        Always!

      • CodeSlinger Says:

        Xanthippa:

        Your constraints are unsatisfiable.

        Force is the only thing states yield to.

        And the shielding you call for does not exist.

        Your argument is a one-way street leading to absolute tyranny.

      • xanthippa Says:

        CodeSlinger:

        your parameters will lead to tyranny anyway.

        There is no point in fighting one tyranny only to instil another.

      • CodeSlinger Says:

        Xanthippa:

        Quite the contrary.

        By allowing freedom fighters to exist, my parameters provide an escape of last resort from tyranny.

        But your parameters don’t leave freedom fighters room to do what they must do to exist.

        Thus your parameters deprive society of the only credible deterrent against the state’s inherent tendency to descend into tyranny.

      • xanthippa Says:

        CodeSlinger:

        We will have to agree to disagree.

  10. CodeSlinger Says:

    Xanthippa:

    I knew you would agree that Bill C-51 is bad, but I think your misgivings don’t go nearly far enough.

    The damage this legislation will do goes far beyond muzzling free speech.

    Far more dangerous are the new powers the government arrogates to itself with this bill’s provisions authorizing CSIS to “disrupt” the activities of anyone the government calls a terrorist (a term which has been so broadened that the label can be hung on anyone the government dislikes).

    This law would authorize CSIS

    (a) to enter any place or open or obtain access to any thing;

    (b) to search for, remove or return, or examine, take extracts from or make copies of or record in any other manner the information, record, document or thing;

    (c) to install, maintain or remove any thing;

    (d) to do any other thing that is reasonably necessary to take those measures.

    This is the actual text of the bill, with emphasis added by me.

    We are supposed to be comforted by the fact that these powers are subject to a so-called “disruption warrant” to be issued by a judge. But then we read

    (e) the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence;

    Yes, you read that right. This law allows evidence obtained by torture, or even unfounded (but presumably appropriate) allegations made by a (presumably reliable) spy, bureaucrat, or other government apparatchik.

    So peterodonnell has it right: go forth from this place and oppose C-51 with your dying breath.

    • xanthippa Says:

      CodeSlinger,

      When I said I was ‘not comfortable’ with C-51, I was trying to do that ‘understatement to make a point’ thingy…

      I quite agree with you in every sense of the word.

  11. CodeSlinger Says:

    Xanthippa:

    Your point, that the process is the punishment, is well taken.

    Except in cases where it results from abuse of process, though, I don’t really see how it can be avoided.

    If you’re attacked, you’re very likely to take damage in the process of defending yourself. That’s true whether the attack is physical, legal, or whatever. And, though this may strike us as unfair, there really isn’t much that can be done about it in most cases.

    The one thing that comes to mind that could mitigate this effect in the case of legal action would be to award costs only when the winning party is poor relative to the losing party.

    This is particularly important in cases wherein the losing party is the government, especially criminal cases.

    In criminal cases, we already recognize this principle by appointing a defence counsel for an accused who can’t afford one.

    But that’s only pro-forma, because everyone knows that if you have to depend on legal aid then your goose is pretty much cooked. As a result, many people are financially ruined by the cost of establishing their innocence.

    Forcing the government to reimburse every acquitted defendant’s legal costs would do a lot to remedy that.

  12. peterodonnell Says:

    Disruption — sure I’ve heard that term before in Ottawa.

  13. Maikeru Says:

    Connie Fournier’s comments on Baglow v. Smith

    6 Ways Baglow v Smith helped save the Internets!


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: