Tag Archives: libel

NO JUSTICE FOR DISSIDENT WHATCOTT IN CBC LIBEL APPEAL

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   NO JUSTICE FOR DISSIDENT WHATCOTT IN CBC     LIBEL APPEAL

Canada’s courts are dominated by judges holding to a Cultural Marxist ideology. In their world, people are divided into “vulnerable minorities” who must be protected from criticism and oppressors. Near the very top of their “vulnerable minority” hit parade are homosexuals and the whole LGBTQ-alphabet soup of the sexually unusual. A strong critic for over 20 years of the homosexual agenda is Bill Whatcott. Beggared, jailed, fined, ruined by a homosexual led boycott of his carpet cleaning business, Mr. Whatcot t is nothing if not a fighter.


He won a libel action against the CBC for their deliberate distortion of his words. Good for him. However, the short-lived victory, was substantially reversed with an additional punishing kick in the kidneys, saddling him with the CBC’s costs.


The Saskatchewan Court of Appeals upheld the finding of libel but slashed the $30,000 award to a measly $1,000 and essentially cancelled it by awarding costs against Whatcott. An appeal can run $10,000 – $40,000 easily. So, even in winning, partially, Mr. Whatcott, the real victim, loses.


The decision written by Neal Caldwell concluded: “There is simply no evidence upon which to quantify or begin to assess the level of damages in this case. For this reason, although the Chambers judge’s finding of defamation attracts a presumptive award of damages, the absence of evidence of the effect of the defamation that occurred here limits that to an award of nominal damages only. The appeal is allowed in part. The finding of defamation is not subject to appellate reversal. The judge’s findings with respect to the extent of publication and actual malice are set\ aside, as is the award of aggravated damages. The award of compensatory general damages is reduced to the nominal amount of $1,000. Since the CBC was substantially successful, it shall have its costs in this appeal in the usual manner.”


The Court of Appeals is advancing the novel proposition that it is hard to know how big an audience CBC News has or what influence, if any its stories, have. Thus, so the bowel twister of an argument goes, there is no proof Mr. Whatcott suffered any damage. If the CBC really has such a small audience and so little influence, this is a sad commentary on decades of taxpayer $billion+ annual subsidy for this leftist propaganda agency.


Interestingly, in the CAFE/Fromm’s libel case, where we were sued for defamation by Richard Warman for, among other things, calling him “the high priest of censorship”, the Court gladly awarded $40,000 in damages, even though our words were circulated on relatively obscure websites, not blared over Canada’s national news network. In that case, Judge Monique Metivier seemed convinced that Warman’s reputation had been damaged by our merely uttering these words. It’s flattering but not convincing to believe that our writings are more powerful than the multi-billion dollar foghorn of the CBC. Actually, this is just another case of our leftists courts beating up on a pesky Christian; namely, Bill Whatcott.


The National Post (February 26, 2016) provides more detail to the story: In Saskatchewan, “he province’s top court has significantly cut the amount of money the Canadian Broadcasting Corporation has to pay for defaming anti-gay crusader Bill Whatcott. Originally ordered to pay Whatcott $30,000, the CBC is now on the hook for only $1,000 after a partial win before the Saskatchewan Court of Appeal.
“While I find no cogent basis to set aside the finding of defamation, I would nevertheless intervene and reduce the general damages awarded in this matter to a nominal amount,” Justice Neal Caldwell wrote on behalf of the court. ….

The issue dates back to October 2011 when the CBC published a report on The National and its website about a case involving Whatcott that was before the Supreme Court of Canada. It stemmed from a Saskatchewan Court of Appeal ruling regarding Whatcott’s battle with the Saskatchewan Human Rights Commission over anti-gay pamphlets he distributed in Saskatoon and Regina in 2001 and 2002.

The CBC report included a pan of one of Whatcott’s pamphlets — but not the one that was at issue in the human rights case. Rather, it was one Whatcott had distributed in Alberta in 2008. The CBC showed the side of the pamphlet with lyrics to a song that Whatcott had modified to read, “Kill the Homosexual.” On the reverse side, which the CBC didn’t show, “Whatcott had purported to disclaim or exculpate himself from liability for its inflammatory content, suggesting that he did not truly advocate the murder of homosexuals,” the decision notes.
(Don Healy / Leader-Post)Bill Whatcott handing out flyers at the University of Regina on March 6, 2013.

Whatcott sued, claiming that CBC’s depiction of the pamphlet would cause viewers to believe he advocated murdering homosexual people.
In January 2015 Court of Queen’s Bench Justice Richard Elson agreed, finding the CBC had misrepresented the pamphlet in its four-minute news segment. He awarded Whatcott $20,000 in general damages and an additional $10,000 in aggravated damages after finding the broadcaster had acted with malice.
The CBC appealed, arguing Elson had made several legal errors.

The mere fact the CBC had published a defamatory news segment does not serve to increase the measure of general damages or to justify an award of aggravated damages.

“While the defamatory nature of the news segment is open to some interpretation, I cannot conclude that the judge’s interpretation of it as defamatory was either unreasonable or borne of an error of law,” wrote Caldwell in a decision made unanimous by Justices Ralph Ottenbreit and Maurice Herauf. Elson had found the CBC’s focus on a single, offensive phrase conveyed the impression Whatcott’s activism was more extreme that it actually was and would “tend to lower the plaintiff’s reputation in the eyes of a reasonable person.”

However, the court did determine Elson erred in other findings.
Caldwell said the judge had no evidence about the scope of the publication so erred in assessing damages. The court said Whatcott was responsible for making his case, and “it was not for the judge to fill in the gaps with speculation.”

Whatcott had also failed to provide proof of actual malice, and Elson had made inferences based on “scant evidence,” said Caldwell.
“The mere fact the CBC had published a defamatory news segment does not serve to increase the measure of general damages or to justify an award of aggravated damages,” wrote Caldwell.”

Day 1 of the Baglow v. Smith & Fourniers Defamation Hearing

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Day 1 of the Baglow v. Smith & Fourniers Defamation Hearing

March 24, 2014, OTTAWA: Today was an interesting day in an Ottawa courtroom at the pseudonymous defamation trial of “Dr Dawg” vs “Peter O’Donnell”. It started off with a bang and ended early with the judge handing out a homework assignment for the defendants.
This long running internet defamation case started back in August 2010, when the defendant using the internet pseudonym “Peter O’Donnell” posted a comment on the FreeDominion message board which accused the plaintiff who uses the internet pseudonym “Dr Dawg”, of being “one of the Taliban’s more vocal supporters” [1]. The plaintiff “Dr Dawg” (a.k.a John Baglow) then filed a defamation action against the owners/system operators of FreeDominion; Mark and Connie Fournier, and the poster “Peter O’Donnell” (a.k.a. Roger Smith). The whole story gets even more bizarre as the allegedly defamatory comment was posted on a webserver in Panama.

Shortly after receiving the defamation notice, Mark and Connie Fournier applied to the Ontario Superior Court of Justice for a summary judgment dismissing the libel claim by “Dr Dawg”. My understanding is that a summary motion is a way to have your case quickly heard and a decision by a judge on the facts could be obtained expeditiously which would reduce the costs on the parties from having a full blown trial.

Mark & Connie Fournier, Recipients of the

George Orwell Free Speech Award, Victoria, BC, 2009

On August 30, 2011, Justice Annis of the Ontario Superior Court of Justice summarily tossed out the defamation claim by “Dr Dawg”. The judge found that the statement by “Peter O’Donnell” was not defamatory as it constituted opinion and was made in context of ongoing comment thread on a blog. (Para 75: For all of the foregoing reasons, I conclude that the comment that the plaintiff was a vocal supporter of the Taliban is not capable of conveying a defamatory meaning) [See full decision here: http://canlii.ca/t/fmvmp]

“Dr Dawg” appealed that decision to the Court of Appeal for Ontario saying that the original Judge (Annis) erring in granting the summary judgment dismissing “Dr. Dawgs” defamation action. The Court of Appeal for Ontario ruled on June 14, 2012 in “Dr Dawgs” favour that “The motion judge erred in granting summary judgment. The issues raised in this action were important because they arose in the relatively novel milieu of Internet defamation in the political blogosphere. They were not issues that lent themselves to determination on a motion for summary judgment, particularly where the action was being processed in the simplified procedure regime. Novel questions of law or of mixed law and fact in defamation matters ought generally to be determined at a trial.” (Quoted from case summary) [See full decision here: http://canlii.ca/t/frphh]

That is a seriously condensed version of the three year back story to this case … now let’s fast forward to what happened today in the Ottawa Courtroom.

The hearing was held in a small court room usually slated for criminal cases. There were not too many seats and no room at the lawyers table. In fact, the court attendants had to fetch more chairs for the battery of lawyers and self-represented litigants.
The parties at the hearing were:

Plaintiff: (person who brought the defamation action)
·“Dr Dawg” (a.k.a John Baglow)
·Peter Burnet, lawyer
Defendants: (defending the defamation action)
·“Peter O’Donnell” (a.k.a Roger Smith) – Self-represented
·Connie Fournier (self-represented)
·Mark Fournier (represented by Barbara Kulaszka)
·Barbara Kulaszka, lawyer
Interested Parties: (These are ‘friends of the court’ who make submissions to assist the judge in coming to her decision, based on the organizations they represent)
·Mr. Frankel, lawyer (Representing the Canadian Civil Liberties Association, who support freedom of expression)
The day started off around 10:15am, with a series of ‘housekeeping’ matters. Discussions on the timing of the case; some back and forth about various minutia of the case; and a brief introduction to the participants of who the judge is. The Madame Justice’s opening remarks were quite surprising. She said that she has “never been on a blog before. Never uses the internet, except for a bit of email and doesn’t use twitter or facebook”. The judge summed it up as “I’m a clean slate when it comes to the internet”.


Perhaps a skeptical observer might wonder why on earth would a Judge be assigned to a case which is 100% based on internet content, (blogs, message boards, etc) and involves highly technical evidence about the internet, and it’s inner workings in relation to a blog’s comment section software? Equally important (if not more important) is that the judge will not even have the opportunity to hear expert opinion and be able to weigh various expert reports on the issue. Honestly, with no possible way to relate or conceptualize any of the information on what the internet is and has become, it would be like trying to explain to Mesopotamian Scribe the intricacies of the Gutenberg Movable Type printing press and how revolutionary the concept of a movable type printing press was. The revolutionary informational change in society brought forth by the Internet is undeniable and transformational.

This Madame Justice has been tasked with a very important decision which will have impacts on the very core of political discourse and she doesn’t even know what (or use) any interactive website such as Facebook or Twitter. As a person that loves and cherishes freedom of speech, it is really worrisome that a decision which will effect tens of thousands of bloggers, writers, media websites, and message board operators, will be decided by a person that can barely use an email client (by her own admission!).

Even if “Dr Dawg” is right and it is defamatory to say what “Peter O’Donnell” said, to have this important fundamental question of online political discourse decided by a Judge who has “never been on a blog” is a pretty scary thought and unfair to BOTH parties, who have battled it out in the legal trenches waiting for this day to decide this important and novel question of law. In my mind, this is yet another reason why Ontario’s defamation law needs to be repealed in its entirety … but I digress, who knows, this judge might well come out with a great decision on an important and novel question of law that would make Lady Justice blush with envy.

After the judge gave a short opening statement it was time for each of the parties to give their opening statements. The opening statement is an opportunity for each party to layout the case and what their view of it is. Up first was “Dr Dawgs” lawyer, Peter Burnet.

(All the comments below are taken from my quickly scribbled notes of what happened, so take them with a grain of salt. There might have been parts that I missed, or not fully understood. These are simply my opinions on what happened, not statements of fact. In the event of any errors or inaccuracies, please email: marc (at) lemire.com for corrections)

Trial – Day 1:
Mr. Burnet went through the evidence and highlighted who “Dr Dawg” is in real life a.k.a John Baglow. “Dr Dawg” is a retired civil servant and labour activist who blogs on a website called Dawgs Blog, which is his “principle vehicle” for posting commentary. Burnet proclaimed that “Dr. Dawgs” views are “proudly lefist”. Furthermore “Dr Dawg” “welcomes the opportunity to debate those who do not share his views”. “Dr Dawg” believes that the defendants are “extreme right-wing”. In regards to the effect of the defamatory posting by “Peter O’Donnell”: “Dr. Dawg” “cannot identify any loss of income and has not interfered in his professional life”. “Dr Dawg” is looking for ‘damages at large’, as opposed to a breakdown on special, general and punitive damages. Mr. Burnet stated that “this case is not about freedom of speech” and furthermore, “this case is not a SLAPP suit”.

Up next was Barbara Kulaszka, who is representing Mark Fournier. Many readers to my blog will recognize that Barbara Kulaszka was also my lawyer and is the one who exposed the censorship provisions of the now repealed Section 13 of the Canadian Human Rights Act. Mrs. Kulaszka gave an informative opening statement which covered all the legal aspects of this case. She quoted frequently from various libel cases from the Supreme Court of Canada, and highlighted the case of Kari Simpson. Mrs. Kulaszka raised the fact that the complained of words (defamatory content) “identifies only Dr Dawg”, the internet pseudonym of a.k.a. John Baglow. In effect “Baglow has a different persona online”. In his personal life he has a certain reputation and on the internet with his Internet alias he is a different person, with a much different reputation. Kulaszka equated this dichotomy between online aliases and the real life person to that of Superman; who in ‘real life’ was Clark Kent, a nerdy photographer from the Daily Bugle but after he visits a phone booth, and rips off his shirt to show his superman side, out comes a totally different person.

After a short break, Connie Fournier who is part of the FreeDominion message board gave her opening remarks. While earlier in the trial she was represented by Barbara Kulaszka, Connie chose to represent herself at the actual trial. Connie’s opening remarks were to the point and highly directed at the effect of being hit with a lawsuit – at times you might have thought she was a plaintiff in the case, and many accusations were hurled at the opposing side. Connie Fournier started her opening statement by alleging that this lawsuit was “part of an ongoing cyber-bullying campaign” against her, which included “taunting and harassing on Twitter” and “threatening and attacking others who associated with her”. Connie expressed some serious reservations about being “sexualized” in the ongoing heated political discourse surrounding this case, which included comments such as she was a “freeDominatrix”.

With reference to the on-going back-and-forth discussions on various blogs and message boards, Connie summed up her views of the apparently invective-filled discourse by stating “discussions with Dr. Dawg are more like a ballroom brawl than a dinner party”. At the end of her submissions Connie reflected on the fact that this case has taken 3 years of her life and $13,000 to get to this point.

Up next was “Peter O’Donnell” a.k.a. Roger Smith, who was representing himself. Mr. Smith attempted in his best non-lawyer fashion to craft an opening statement which was constantly interrupted by the judge who pointed out that Mr. Smith should not be testifying, but rather to give an opening statement. Mr. Smith explained a bit about who he was, and when he got involved in political discussions on the Internet. Mr. Smith stated that “freedominion satisfies a need in the opinion marketplace of ideas” and is not an “extreme right wing website”. In reference to the allegedly defamatory posting, Mr. Smith stated that “5… maybe 6 people read the impugned words”.
Roger Smith summed up his views on the trial in 6 concise words “this entire process is a travesty!” When the judge asked about his posting, Mr. Smith answered “political opinions should not be adjudicated in courts”

After lunch was the lawyer representing the Canadian Civil Liberties Association, Mr. Frankel. While the CCLA was not originally granted an opening statement, the judge offered Mr. Frankel the opportunity to state the CCLA’s position on the larger societal issues of this case. Mr. Frankel made it clear from the outset that the CCLA takes no position on the facts of this specific case, but rather intervened in this case because of the broader public interest with respect to freedom of expression. The CCLA wants to see defamation law “develop in accordance with the Charters protections for freedom of expression in mind.”
The CCLA’s position has 5 pillars:
1.Heated political debate on the internet should be factored into the test of a “reasonable person” with respect to the context of the overall debate
2.Context of the meaning of the words is critical.
3.Administrators and blog operators should not be held to a strict liability test under defamation law. And that by holding message board operators (such as Mark and Connie Fournier) to a strict liability test it has a chilling effect on freedom of expression.
4.The broader context needs to be looked at for statements of facts vs opinion. And that comments should be looked at in a contextual fashion if they are facts or opinions
5.An adequate factual foundation needs to be established in accordance with overall context of the posting. The court should not adjudicate in vacuum. And the court should “not be restricted to the four corners of the case”.
That was the end of the opening statements by the parties.

After the CCLA was done, Mr. Burnet rose to address the court on some issues that came out in the opening statement of Connie Fournier and Barbara Kulaszka. Mr. Burnet described some of the allegations by Connie Fournier as “blindsiding” him, and those allegations apparently have not been previously particularized. A lengthy debate ensued over these allegations and what particular information supports the inferences that Connie was attempting to raise and if those inferences would prejudice the other side.

At the end of the day, the Judge ordered that Connie particularize her claims in writing, and similarly that Barbara Kulaszka also particularize some of the statements she raised during her opening statement. The parties were given until 9:00pm this evening to e-mail them to “Dr Dawgs” lawyer Mr. Barnet.

The trial continues tomorrow at 10:00am in the Ottawa courthouse.

http://blog.freedomsite.org/2014/03/day-1-of-baglow-v-smith-fourniers.html

Free Dominion Silenced — Richard Warman Cannot Be Criticized on their Site

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Free Dominion Silenced — Richard Warman Cannot Be Criticized on their Site
 

Richard Warman seems to do very well in Ottawa with defamation suits. The courts there seem to like him and he pockets fat awards, plus costs. He’s a hometown boy. His wife too works in the legal system. It’s tough for outsiders like the Fourniers or CAFE/Fromm or others who have not had the home town advantage. On January 23, a provincial  superior judge, Robert Smith,  slapped the Fourniers with a crushing Singapore-style $127,000 judgement — damages and costs for Richard Warman in a six-year long defamation suit. The Fourniers are shutting down their website Free Dominion, at least as a discussion board.

 

They write: “As of today, January 23, 2014, and after 13 years online, Free Dominion is closing its doors to the public. We have been successfully censored.

Today, Ontario Superior Court Justice Robert Smith issued an order in the Richard Warman vs Mark and Connie Fournier and John Does defamation case heard September, 2013. In addition to ordering that we must pay Warman $127,000, Justice Smith issued an injunction against us ordering we that never publish, or allow to be published, anything negative about Richard Warman. This means we are barred for life from ever operating a public forum or a blog (even about cookie recipes) where the public can comment. If we do so, any one of Warman’s handful of supporters could, and probably would, use a common proxy server to avoid being traced, plant a negative comment about Warman on our site, and we would both be charged with contempt of court. If that happened –unlike in the Ottawa courtroom where we were blocked at every turn from presenting a defense– we actually would have no defense. We would both go to jail. This life sentence was imposed for our terrible crimes of voicing our honestly held beliefs and allowing others to do the same. Defamation law, in its current state, is entirely inadequate and counterproductive when applied to the internet. Now it is being used as a tool of censorship. Effectively!

We are assessing our options.

In faith,
Mark and Connie Fournier

“If it takes force to impose your ideas on your fellow man, there is something wrong with your ideas. If you are willing to use force to impose your ideas on your fellow man, there is something wrong with you.” – Mark Fournier

 

The good news is that the Fourniers are appealing.

 

A lawyer we consulted says that Canada’s libel laws have to be changed and brought into the age of the Internet. To make the owner of a discussion board responsible for the comments of anonymous posters is repressive and unrealistic. In the U.S., an aggrieved person must go after the person who wrote the post, not the owner of the discussion board.

 

The injunction granted to Richard Warman is an outrage. It makes 41 comments — deemed defamatory — forbidden. While the Fourniers may be able to tiptoe in their own comments around the thin-skinned self-styled Ottawa “human rights” lawyer, they fear a troll, a mischievous “anti-racist” or even an exuberant critic of Warman’s decade long attack on posters he disapproves of on the Internet might repeat one of the forbidden criticisms — even as I am forbidden by Madam Monique Metivier’s judgement to call Mr. Warman a “censor” — and, thus, land the Fourniers into a position where they are in contempt of court and on a swift trip to prison — two more potential political prisoners in this land that preaches free speech, but practices repression.
Canada’s libel laws desperately need reform. As they stand now, they are capriciously applied, A prominent Vancovuer shock jock called Doug Christie “a perverted monster” for defending Ernst Zundel’s right to speak. That was not considered defamatory. Canada’s libel laws are beginning to resemble those of Singapore in the past. Yes, opposition to the strongman was permitted and there was a feeble opposition and the trappings of democracy. However, any opposition politician who criticized a government member quickly found himself sued for libel. Ruinous judgements soon all but silenced the opposition.
Sadly, Canada seems headed in this direction.
The Fourniers have decided to shut down FreeDominion as a discussion board. That may be wise in a repressive state but it is sad. Canada needs more spirited discussion, not less.

 

 
 
 
The Ottawa Citizen (January 29, 2014) explains the horrific blow to free speech further:
 
“

Conservative website shuttered after libel ruling

 

Ottawa lawyer Richard Warman wins long-running legal battle

 
By Andrew Duffy, OTTAWA CITIZEN January 28, 2014
 
 

 
Conservative website shuttered after libel ruling
 

Richard Warman has been awarded more than $127,000 in general damages, aggravated damages, punitive damages and court costs because of 41 defamatory statements published on the conservative website in 2007.

Photograph by: Bruno Schlumberger , BRUNO SCHLUMBERGER

OTTAWA — The online political forum, Free Dominion, has shut down after a wholesale defeat in a libel case brought by Ottawa human rights lawyer Richard Warman.

A jury concluded that Warman was maliciously defamed by four commentators on Free Dominion, a website that bills itself as “the voice of principled conservatism.”

Warman has been awarded more than $127,000 in general damages, aggravated damages, punitive damages and court costs because of 41 defamatory statements published on the conservative website in 2007.

Warman rose to prominence during the past decade by using the Canadian Human Rights Act to shut down the websites of people spreading hate speech; it made him the target of free speech advocates in the conservative blogosphere, and on websites such as Free Dominion.

In a recently released decision, Ontario Superior Court Justice Robert Smith granted Warman a permanent injunction that prohibits Free Dominion from ever repeating “in any manner whatsoever” any of the 41 defamations.

The website’s operators, Connie and Mark Fournier, of Kingston, this week shut down freedominion.ca, saying they could not control what comments other people posted.

“By leaving the forum open and allowing people to comment, we’d be opening ourselves to a contempt-of-court charge,” Connie Fournier said Tuesday.

“If someone repeated one of those comments, we would be in trouble — and could even go to jail.”

The Fourniers have operated the website as a “labour of love” for the past 13 years.

“It’s really sad to be at the point where we have to shut down the political forum,” she said. “But we’ve come to the point where it would be crazy for us to keep it open: it would be too much of a risk.”

They have vowed to appeal the defamation case and have launched a campaign on Indiegogo.com to raise money for their legal costs. The campaign has so far raised $2,800 of its $25,000 goal.”

 

Paul Fromm

Director

CANADIAN ASSOCIATION FOR FREE EXPRESSION