Tag Archives: Mark Fournier

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Mark and Connie FournierDay 2 of the Baglow v. Smith & Fourniers Defamation Hearing

Baglow testifies and hearing delayed due to medical problems

 
March 25, 2014 OTTAWA:  Today is the second day of the pseudonymous defamation trial of “Dr Dawg” vs “Peter O’Donnell”.  For background on the case and my comments on the first day, see my blog posting here: http://blog.freedomsite.org/2014/03/day-1-of-baglow-v-smith-fourniers.html
 

For the entire day, “Dr Dawg” a.k.a. John Baglow gave testimony about his defamation lawsuit and introduced documents that form the case he is presenting to the court.  The hearing today was significantly shorted due to an apparent medical situation which effected one of the main parties. After the morning break, one of the court staff made a comment about the health (high blood pressure / stroke potential?) of one of the main parties.  While the person insisted he was fine and could proceed with the case, the court staff seemed to react that the medical situation needed to be addressed immediately.  After a short confab with the lawyers and self-represented parties, it was ordered that the trial should stop immediately and could reconvene after a 2+ hour break at 2:00pm.  On the bright side for the affected party, I am a former medic and would intervene if I saw the individual go down. J

Day 2 – “Dr Dawg” Testifies – In-Chief.
 
The day started off with Peter Burnet calling his witness to the stand “Dr. Dawg”.
 

The Fourniers, Connie & Mark, Battling for the Rights of Bulletin Board Hosts
 
In a brief series of questions, Burnet asked “Dr Dawg” to give some biographical information.  “Dr Dawg” is 67 years old and lives in Ottawa.  He attended several Universities in Canada and in Scotland and has a BA and Masters in Literature.  For years “Dr Dawg” was employed by the Social Sciences and Research Council as a grant officer.  While working at SSRC, “Dr Dawg” became interested in labour issues and was elected to a position with the Public Service Alliance of Canada (PSAC) where he was a vice-president until 2003.  In 2003 “Dr Dawg” went into a consulting business called ‘First Write”.
 
“Dr Dawg” describes himself as “a man of the left” and in his youth was a member of the NDP Youth wing.  After that, he “gravitated towards the Communist Party and was a member until the Czechoslovakian invasion”, when he left the party and rejoined the NDP.  He is a card carrying member of the NDP, with the exception of a couple of years when he was upset with the party and “ripped up his NDP membership card”.
 
The Blogosphere is made up of “millions of blogs … maybe hundreds of millions of postings”.  On his own blog called “Dawgs Blawg” he receives “up to one thousand unique visits a day”.  “Comments are not moderated on my blog and go directly up”.  “I chose not to moderate my blog” but on occasions has had to ban “up to 30 people” for postings he finds offensive.  On his website “I use Site Meter to track visitors.  I can see new and returning visitors.  I can see the IP Address”.
 
“In 2005 I decided to set up a blog about left wing issues and perspectives”. And as part of that he has “three co-bloggers on the site”, though the number of co-bloggers has fluctuated over time.  He named the site “Dawgs Blawg; because I like dogs and didn’t want to take it that seriously.  It is a cartoonish name”.
 
“I welcome comments from people with different and divergent opinions”, which includes “Dr Dawgs” own lawyer – Peter Burnet who admitted to being a poster on the Dawg’s Blawg website.
 
“I really enjoy the cut and thrust of debate” says “Dr Dawg”, and over the years has been officially served twice with defamation for his blog.  The first case apparently involved a mistaken name on an article he wrote.  “Dr Dawg” was served with a libel notice, and ended up removing the post and publishing a retraction.
 
The second defamation complaint came from Ezra Levant, who served a libel notice for comments made surrounding a law society complaint where it was claimed to have been upheld by the law society.  “Dr Dawg” removed some of the comments and apologized to Levant.  “Dr Dawg” claims that “Levants lawyers then apparently wanted to remove other allegedly defamatory material which I did not comply with or remove”.  Levant did not follow up on the lawsuit after that point.
 
In regards to the website FreeDominion, “Dr Dawg” describes them as “radically conservative and pretty extreme.  Use of the ‘N’ word.  Muslim bashing, homophobia and an unpleasant place”.  The website “champions the rights of white nationalists, holocaust deniers, neo-nazis, white supremacists, homophobes and supports the right to unrestrained hate in society”.  Over the years “Dr Dawg” posted “once or twice on FreeDominion”.
 
In terms of speech restrictions, “Dr Dawg” says that “I strongly supported Section 13 and was sad to see it go”.  That is a reference to Section 13 of the Canadian Human Rights Act, Canada’s internet censorship legislation, which was repealed by the government last year (See more on Section 13 @ http://www.stopsection13.com)
 
“Dr Dawg” talked about a posting entitled ‘Freedom of Speech’ which I think was a posting on the FreeDominion message board.  In his testimony “Dr Dawg” made some sort of reference to a “technical relationship” between Connie Fournier and myself.  I did not understand his testimony on this point or what was meant by “technical relationship”.  I believe it has something to do with computers, and perhaps an affidavit from a computer expert which was introduced in my Section 13 hearing (Bernard Klatt).   Perhaps we’ll know more on this point during the cross-examination tomorrow.
 
In reference to Connie Fournier, one of the owner/admins of the FreeDominion website, “Dr Dawg” posted a few times that she was the “FreeDominatrix”.  He was sorry and “sometimes I can’t help myself being uncivil to the uncivilized” and was “mocking her for a hyper-aggressive posture”.  “There is a hostility between the Fourniers and myself”.
 

Traitor = Not Defamatory.  Vocal Supporter of Taliban = Defamation

“Dr Dawgs” testimony then centered on why he did not sue Roger Smith for calling him a traitor on Dawgs Blawg, but did sue over the Taliban comments.  This gets a bit convoluted for me, since “Dr Dawg” was going very fast, and I just managed to write down smaller points of what he said.  But basically the “traitor” comment written by “Peter O’Donnell” was “incoherent” and that “the comment self-destructs” due to its context.
 
The statement about “Dr Dawg” being a more vocal supporter of the Taliban “was a long and rambling post about a different topic” and when the post mentions “Dr Dawg”, “there was no context to the statement” which made it defamatory.  “Dr Dawg” took the comments on the Taliban to be similar to calling him “an enemy agent”.
 
From there “Dr Dawg” moved on and discussed some posting he had made on the Internet where he was critical of the Taliban and called them “an odious bunch of people” that are a “murderous band of thugs” and their “cult of religious insanity”.  While “Dr Dawg” had been critical of the Taliban, he was opposed to Canada’s intervention in the war in Afghanistan for a variety of reasons which included that the Taliban was originally supported by the US government in their war against the Soviets.  “I don’t support another foreign intervention, when multiple foreign interventions are what originally caused the problems in the region”.
 
After that “Dr Dawg” moved on to some other commentary, where apparently a prominent member of Canada’s B’nai Brith (Harry Abrams) referred to him as being Anti-Semitic for his comments on the State of Israel. “Dr Dawg” stated that he is “quite critical of Israeli treatment of Palestinians and Bedouin’s” and in terms of “Israeli Apartheid” he says that “it is unfair to label Israel as an Apartheid state, but there are some apartheid like elements in the Israel’s treatment of Palestinians and Bedouins”.
 
The day came to a close with a series of questions by Burnet on the context of the Blogosphere.  “Dr Dawg” testified that “context is important” and that “the political blogosphere could be characterized as polemical”.  But “we should not allow plain falsehood.  And the internet does not make it ok to lie online”.
 
Stay tuned for the cross-examination tomorrow of “Dr Dawg”.
 
 

: http://blog.freedomsite.org/2014/03/day-2-of-baglow-v-smith-fourniers.html

Defamation Law in Absurdistan: Two pseudonyms battle it out in an Ottawa Courtroom while freedom of speech is dealt a death blow

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Defamation Law in Absurdistan: Two pseudonyms battle it out in an Ottawa Courtroom while freedom of speech is dealt a death blow

 

Defamation law in Canada is a glaring example of the archaic state of our laws. This week in an Ottawa courtroom, two Internet bloggers – who both use pseudonyms – are going to state their case before a judge.  In one corner is the defendant, an inveterate blogger who uses the pseudonym Peter O’Donnell (AKA Roger Smith) who is being sued for saying that another pseudonym “Dr Dawg” (AKA John Baglow) is “one of the Taliban’s more vocal supporters”.  And caught in the middle are Mark and Connie Fournier who run a message board called FreeDominion, where 1 alias apparently defamed another alias in a back and forth message thread.
 
This case initially started back on August 10, 2010, when pseudonym Peter O’Donnell made a posting on FreeDominion (as part of a larger conversation which occurred across multiple blogs).  The posting in part said “I will return to that rather astounding claim but first, the other salvo in the offensive, Dr. Dawg’s colourfully illustrated op-ed that describes the conservative base (for which nobody has claimed non-existence) amounts to “yokels with pitchforks.” This coming from one of the Taliban’s more vocal supporters. I suppose they are super-yokels with Kalashnikovs.” (Complained of words in bold) [Quoted from court judgment on case)
 
So one Internet pseudonym named Peter O’Donnell commented on another internet pseudonym named Dr. Dawg in the heat of a spirited debate.  How on earth could two internet pseudonyms ‘slagging’ each other in an online debate … end up being an on-going 3+ year legal ordeal and costing tens of thousands in legal bills?  Welcome to the antiquated world of defamation law and its application to the medium of the Internet.  While I am not going to specifically refer to validity of the “Dr. Dawg” vs “Peter O’Donnell” case which is currently before the courts – I have some thoughts on the law itself.
 
Ontario’s defamation law is absurd in its entirety, a relic of the pre-internet world.  Once a defamation claim is filed, ‘damages’ are presumed.  There is a very low bar to meet, which is that the words … tend to lower a person’s ‘reputation’ in the eyes of a reasonable man.  But in the Blogosphere and the Twitterverse, what does that even mean nowadays?  How could you quantify what a person’s alias is really worth and should Canada’s over-burdened court system really be the arbiter of these petty disputes?
 
The internet is unique as a communications medium.  When Ontario’s defamation laws were written; a world where individuals could post and communicate ideas by themselves without vast publishing empire could have never even been conceptualized.  Perhaps defamation laws were written to protect the reputations of little people against huge publishing empires. 50 years ago, the only outlet for mass communications were limited to TV stations, newspapers and magazine publishers.   Nowadays anyone with access to a computer and an idea they wish to communicate can do so with just a few clicks of a button.  There is no middle-man controlling the flow of information and this is the inherent design of the Internet, and what makes the internet so popular.
 
The Internet allows all sides of an argument to present their ideas and enables the readers to determine what is correct and reasonable to them.  Just take the mystery surrounding Malaysia flight 370.  A quick google search shows over 1 million webpages discussing the topic, with comments ranging from terrorism, pilot error, to an equipment malfunction. The free flow of ideas is liberating to see and empowering for the populace.  Most of those webpages are people without a vast publishing empire, or a multi-billion dollar TV station.  Readers who are interested in that topic can peruse the various websites and make a determination themselves as to what is real and legitimate information.
 
What role does the court have in this?
 
Thanks to Ontario’s absurd defamation laws, the court has jurisdiction on any information that is from or about someone living in Ontario.  As a resident of Ontario, I could file a defamation lawsuit against almost anyone, so long as the information appeared (or was accessible) on a computer in Ontario.  If the person was outside of Ontario/Canada, it might be difficult to collect any purported damages tho. 
 
Take the above mentioned case (indexed by the court as “Baglow, a.k.a. “Dr. Dawg” v. Smith, a.k.a. “Peter O’Donnell”, et al.”).  Here you have “Dr Dawg” who apparently lives in Ottawa, who sued “Peter O’Donnell” who apparently lives in British Columbia, for a post on a website located in Panama (!), operated by two people apparently living in Kingston, Ontario.  Now an Ontario court is going to decide if a pseudonymous posting on a Panamanian webserver was defamatory of pseudonym living in Ottawa? Can it get any more absurd?
 
Defamation law has really ‘jumped the shark’.  When the courts have to sit and be arbitrators for content on a website located 7,000 KMs away, posted between two internet aliases, what has the law really become and how far will the law go to restrict freedom of expression?  If ‘Beast from the East’ can’t be critical of ‘Vancouver Veronica’ on a website located in Moldova, what value does freedom of speech even have in Ontario? 
 
Under Ontario’s crazy defamation law, Kim Jong Un could file a defamation lawsuit against an Ontario Blogger for poking fun at his recent 100% election ‘victory’ via a website in Timbuktu. Is Canada Absurdastan?  Absolutely!
 
It’s time to consider a full repeal of Ontario’s defamation law.  We have tried this horrible law for over 50 years; why not give freedom a chance?
 

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

The Fourniers & Free Dominion Appeal Life Sentence and Gag Order

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The Fourniers & Free Dominion Appeal Life Sentence and Gag Order

http://www.youtube.com/watch?v=tkCYUMhzNRo&feature=player_embedded

Defamation Law is strangling the Internet
As long time bloggers and forum hosts (13 years so far), we recently finished a long battle against Section 13 of the Canadian Human Rights Act (CHRA) that resulted in the Canadian Parliament repealing the section.
During that time we have also been fighting several defamation and copyright lawsuits that were launched against us by supporters of Section 13. (see Footnote) [i]
Yesterday we received news that is devastating, not only to us, but to anyone who loves freedom of speech on the internet and that includes forum hosts, bloggers and media outlets that allow listeners, readers or viewers to make uncensored comments on their web site.
The two of us and two Free Dominion posters, Peter O’Donnell and Faramir, have been ordered to pay $127,000 to litigant Richard Warman. This is bad enough, but the judge also gave Warman an injunction that states that we are prohibited from publishing anything about the plaintiff that has been found to be defamatory. (In this context, “publishing” includes anything posted on the Free Dominion web site, with or without our knowledge or consent.)
This injunction lasts for life, and can result in prison time for contempt of court if the terms are violated!
We had no choice but to close the forum!
Given the propensity of our political opponents to use agent provocateurs to post inflammatory material on the internet, including on our web site, we knew that given enough time, an anonymous agent would post material on our site that would violate the injunction, so we had to close the forum to protect ourselves.


Paul Fromm, Witness for the Fourniers (right), Ottawa, September, 2013

The Impact
Defamation law is becoming every bit as dangerous for Canadian internet users as Section 13 was!

Defamation law says that a statement is defamatory if it “tends to lower the esteem of the subject in the minds of the ordinary members of the public“.
As you can see, that could apply to any remark viewed by the subject as negative.

Once an action is filed, you have to incur the legal costs of making a defence or accept whatever verdict and penalty the court may decide to impose.

If you are a forum or blog owner and the comment was made by an anonymous poster, you have no defence of “fair comment” because you are not allowed to give “opinion” evidence of the state of mind of the poster or to state what facts the poster relied on. You are effectively taken to task for not censoring the commentary of a third person and not allowed to defend yourself.
You are 100% responsible.

If an anonymous poster makes comment on your blog and someone sues you for it, you can lose everything you have…even if you remove the allegedly offending words or post from your site.
What can we do?
We must appeal this decision because an injunction that could impose jail time for the actions of someone else is grossly unfair and, undoubtedly unconstitutional. We cannot let this precedent stand.
Operating a blog or forum and allowing readers to post their opinions should not lead to financial ruin or put a person’s entire future at risk. As the Ontario Civil Liberties Association recently stated, the Tort of Defamation needs to be abolished. We will fight on both of these fronts.
We must appeal this decision, and we have two other hearings coming up before the end of March. We desperately need help with our legal expenses so we can keep up our fight for freedom of speech on the internet!
Any contribution would be greatly appreciated and we promise to put it to good use!

If you prefer to donate by mail, please send your cheque here:

Connie Fournier
2000 Unity Rd.,
Elginburg, ON K0H 1M0

Thank you!
Connie and Mark Fournier 

The Free Dominion 4 — Huge Defeat for Freedom of Speech in Canada

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The Free Dominion 4 — Huge Defeat for Freedom of Speech in Canada
The bottom line is that, after a very costly and valiant 6-year battle, the Free Dominion 4 —  Free Dominion website owners, Mark and Connie Fournier, and bloggers, Jason Bertucci and Roger Smith — this week lost the defamation action brought against them by Richard Warman. The past six years have been filled with motions and appeals on procedure on the way to trial. The Fourniers face still two more libel actions launched by Richard Warman, a civil servant (Department of National Defence), with seemingly an amazing amount of time on his hands for legal complaints, human rights complaints, tribunals and lawsuits.
The crimes of the Free Dominion 4? Critical comments over several years about Richard Warman, usually is his role of — and in this poxy, anti-freedom environment, we must be careful — seeking to limit the freedom of expression of others. Canadian libel law is very hazy. Remarks that lower a person’s reputation — thus, almost any criticism — can be seen as defamatory. However, truth and fair comment are defences. The jury in the Free Dominion 4  case seemed unwilling to recognize truth or fair comment in numerous postings by the 4 about which Warman had complained.
Here U.S. Attorney Sam Dickson offers some sober counsel: “Juries want to do the nice thing and be popular.” They will often ignore facts, if the defendants have been cast in a bad light.
The defence painted the defendants as extremists, with unpopular, maybe even unusual views and eccentric or opinionated friends or associates. Ottawa is a very politically correct town with a very cozy judiciary, as more than one lawyer has told me. The Free Dominion 4 were clearly odd, outsiders, unenlightened yokels from the sticks or the R.O.C. (the backward Rest of Canada to the entitled Ottawa mindset.) 
The complainant (plaintiff) Richard Warman savours the victory:
“The jury found that all 4 defendants had been motivated by malice in their attacks against me and awarded $42,000 in damages broken down in the following amounts:  Connie Fournier – $7,000 general damages/$4,000 aggravated/$8,000 punitive Mark Fournier – $4,000 general/$3,000 aggravated/$5,000 punitive Jason Bertucci – $2,000 general/$1,000 aggravated/$2,000 punitive Roger Smith – $2,000 general/$1,000 aggravated/$3,000 punitive.”

But, $42,000 out of pocket, in addition to their own legal fees, is not the end of the damage: “An injunction is being sought and costs remain to be ruled on by Justice Robert Smith who presided over the trial,” writes Warman. What exactly would such an injunction mean? We don’t know the wording, but the delightfully diabolical thing about an injunction is that breaking it, even inadvertently, could mean a quick trip to prison for the poor victim impertinent to believe he should open his mouth and speak his mind.

Canada is a soft tyranny. No, we’re not yet a Third World thuggocracy, where dissidents are beaten to death by mobs or rounded up and tortured in prison. Like Singapore, we maintain the trappings of democracy. The way Singapore long maintained a virtual one party state was that there were ferocious libel judgements slapped on opposition politicians who criticized government figures. We haven’t yet reached this level of sophistication but we’re headed there.

Photo: The Free Dominion 4 -- Huge Defeat for Freedom of Speech in Canada The bottom line is that, after a very costly and valiant 6-year battle, the Free Dominion 4 -- Free Dominion website owners, Mark and Connie Fournier, and bloggers, Jason Bertucci and Roger Smith -- this week lost the defamation action brought against them by Richard Warman. The past six years have been filled with motions and appeals on procedure on the way to trial. The Fourniers face still two more libel actions launched by Richard Warman, a civil servant (Department of National Defence), with seemingly an amazing amount of time on his hands for legal complaints, human rights complaints, tribunals and lawsuits. The crimes of the Free Dominion 4? Critical comments over several years about Richard Warman, usually is his role of -- and in this poxy, anti-freedom environment, we must be careful -- seeking to limit the freedom of expression of others. Canadian libel law is very hazy. Remarks that lower a person's reputation -- thus, almost any criticism -- can be seen as defamatory. However, truth and fair comment are defences. The jury in the Free Dominion 4 case seemed unwilling to recognize truth or fair comment in numerous postings by the 4 about which Warman had complained. Here U.S. Attorney Sam Dickson offers some sober counsel: "Juries want to do the nice thing and be popular." They will often ignore facts, if the defendants have been cast in a bad light. The defence painted the defendants as extremists, with unpopular, maybe even unusual views and eccentric or opinionated friends or associates. Ottawa is a very politically correct town with a very cozy judiciary, as more than one lawyer has told me. The Free Dominion 4 were clearly odd, outsiders, unenlightened yokels from the sticks or the R.O.C. (the backward Rest of Canada to the entitled Ottawa mindset.) The complainant (plaintiff) Richard Warman savours the victory: "The jury found that all 4 defendants had been motivated by malice in their attacks against me and awarded $42,000 in damages broken down in the following amounts: Connie Fournier – $7,000 general damages/$4,000 aggravated/$8,000 punitive Mark Fournier – $4,000 general/$3,000 aggravated/$5,000 punitive Jason Bertucci – $2,000 general/$1,000 aggravated/$2,000 punitive Roger Smith – $2,000 general/$1,000 aggravated/$3,000 punitive." But, $42,000 out of pocket, in addition to their own legal fees, is not the end of the damage: "An injunction is being sought and costs remain to be ruled on by Justice Robert Smith who presided over the trial," writes Warman. What exactly would such an injunction mean? We don't know the wording, but the delightfully diabolical thing about an injunction is that breaking it, even inadvertently, could mean a quick trip to prison for the poor victim impertinent to believe he should open his mouth and speak his mind. Canada is a soft tyranny. No, we're not yet a Third World thuggocracy, where dissidents are beaten to death by mobs or rounded up and tortured in prison. Like Singapore, we maintain the trappings of democracy. The way Singapore long maintained a virtual one party state was that there were ferocious libel judgements slapped on opposition politicians who criticized government figures. We haven't yet reached this level of sophistication but we're headed there. Anti-free speech "human rights" legislation under which Warman thrived -- filing several dozen Sec. 13 (Internet censorship) complaints under the Canadian Human Rights Act -- makes criticism of privileged minorities dangerous. The definition of "hate" or "contempt" is hazy. Usually, neither truth nor intent are defences. That's assault number one. The effect of such restrictions is to mute or silence criticism of the immigration invasion, multiculturalism, minority-influenced conspiracies, or the homosexual agenda. Lively, outspoken public debate is stifled. Assault number two is the sort of persecution by libel suits or threats of such suits. That makes criticism of individuals seen to be actively limiting the free expression of others difficult. Libel judgements are capricious. CAFE and I were founded to have defamed Richard Warman for dubbing him a "censor" for his activites. Yet, the late free speech champion Doug Christie was deemed not to have been defamed when a Vancouver talk jock radio host smeared him as "a perverted monster" for having defended Ernst Zundel. We understand the Free Dominion 4 are actively considering an appeal. I attach an excellent commentary by a long-time champion of individual liberties, Tom Kennedy. Paul Fromm Director Canadian Association for Free Expression The Day Free Speech Died In Canada – October 2, 2013 By Tom J. Kennedy My heart skipped a beat when I read Xanthippa's post titled "The Verdict" on Wednesday evening, October 2, 2013: "I’ll be brief. Today is a sad, sad day for all Canadians – and a tragic one for all freedom loving people. The jury foreperson giggled as she said: “The answer is 42!” As in, $42,000 awarded to Mr. Warman in damages… In addition, Mr. Warman is seeking an injunction against Free Dominion – a gag order – that would see the Fourniers thrown into jail if anyone even mentions his name on Free Dominion, no matter how quickly it would be taken down. If that happens, Free Dominion will cease to exist… I’ll have some details later – am too upset to write more now." - Xanthippa Permit me to draw attention to the infamous statement from the Zundel Hearing in Toronto, Ontario, Canada in the 1990’s wherein Commissioner Pensa is quoted as saying: "It is the finding of this Tribunal that truth is not an issue before us. Parliament has spoken. The use of telephone messages for purposes prohibited by Section 13 of the Act cannot be justified by asserting that such messages are truthful. The sole issue is whether such communications are likely to expose a person or persons to hatred or contempt." In summary, the Commissioner Pensa determined that “truth is no defense,” or in other words in any case before that quasi-judicial body – the Human Rights Tribunal “truth doesn’t matter.” It seems that the absurd statement “truth is no defense” has crept into the regular court system in this 21st Century. Read Mark Weber's article: "The Importance of the Zundel Hearing in Toronto." A most important cyber-defamation case – “Warman vs Fournieret al” began on September 9, 2013 and ended on October 2, 2013 at a civil court in Ottawa, Ontario, Canada. Mark Fournier writes at Free Dominion about the day that free speech died in Canada: “The jury decided that we had not taken down the complained of posts fast enough so we were therefore responsible for all the posts made by third parties. This put us in a position where we had no defenses to protect ourselves. We weren’t allowed to put in evidence to prove the truth of many of the facts (such as the David Icke video), we weren’t allowed to say what we believed commenters were referring to in their comments, and we couldn’t testify to the state of mind, or motivation of, anonymous posters. We were held responsible for the words of others and systematically stripped of every possible defense.” The verdict by the jury in the “Warman vs Fournier et al” has effectively killed good, old-fashioned, political discourse and debate in cyberspace, in Canada. Even minor insults and common hyperbole of innocent nature and made-up words not in the dictionary, can now be construed as defamation. The law lesson learned from the verdict is that defamation court actions are designed to stifle online discourse and healthy political debates that used to commonly take place around kitchen tables and then graduated to cyberspace are now less likely to happen in the blogosphere, since all owners of blogs, forums, chat rooms etc. must now become ruthless, editorial police to avoid the risk of libel suits. The law definition of libel states: “Any communication that is likely to lower that person in the estimation of reasonable people and in particular to cause that person to be regarded with feelings of hatred, contempt, ridicule, fear or dislike.” Each and every Canadian ought to now be motivated to action in a gallant effort to redeem free speech in Canada. Most likely, our elected representatives are not yet aware of the significant impact that the verdict in the Warman vs Fournier et al is having on our fragile and ever diminishing right of free speech in Canada. Canadians everywhere are invited and encouraged to communicate with their respective, elected Members of Parliament re: Canada's oppressive and outdated libel laws and the outcome of the "Warman vs Fournier et al" trial. Read Jeffrey Sahllit’s article: "It's time to reform Canadianlibel law" And Alan Shanoff’s article: "Timeto abolish outdated defamatory libel offence" To redeem free speech in Canada, the libel laws must be revised to modernize the original words of the Magna Carta that was written in the 13th Century when King John was the feared enemy of freedom and liberty. Lord Denning referred to the Magna Carta as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.” In retrospect, perhaps the six member jury would have returned with a different verdict if the Plaintiff’s responsibility was to prove that the statements were typed with malicious intent. In this 21st Century, the power of the Plaintiff in a cyber-defamation case becomes the feared despot to freedom of speech. Connie Fournier explains at Free Dominion, the challenge she and Mark faced as Defendants: “The witnesses we brought in were to prove specific facts that we needed to prove were true in order for a fair comment defense to apply. The fair comment defense doesn't apply if the comment is not based on "proven facts". Since there were specific comments about a protest at Paul Fromm's house and about events with David Icke so we needed them to give testimony about them. Newspaper articles and even tribunal transcripts were considered hearsay and much of the evidence we brought was excluded by the judge. You cannot prove a fact in court unless you call a real person who was there. So you can see how impossible it is to vet every post that is posted on an internet forum and, when you are facing getting witnesses to prove facts behind sixty-some posts, it is an enormous burden. In our case, as our opponents found out that we had witnesses to prove certain facts, they removed the related posts from their claim. In fact, they waited until the day of the trial when they knew for a fact that David Icke was coming, to remove the posts related to him and they tried to get the judge to block his testimony (after we had already paid for his flight and accommodations). In their haste, they forgot to remove ONE of those allegations so he testified. But, that is how it went all the way through the trial. The strategy was NOT to attack Richard Warman's character. We focused on proving facts related to specific posts, and we went as far as we could in trying to persuade the jury that the posts were not defamatory, but our hands were tied there. The judge is in charge of giving them the law and the definition of defamation that he gave them would encompass any negative comment. It was "any communication that is likely to lower that person in the estimation of reasonable people and in particular to cause that person to be regarded with feelings of hatred, contempt, ridicule, fear, or dislike." We were not allowed to refer to any case law that gave a broader definition, and the judge specifically refused to give the jury case law relating to the extra latitude that should be given to "political speech". I was stopped from giving my opinion as to how comments are interpreted in an online forum context because I was not an "expert witness", and every time I tried to explain the context of an anonymous comment or what I thought was the motivation behind a post, I was not allowed to continue. Anyway, you can only go so far when the judge has the final word on the evidence the jury will be allowed to see. The only recourse when you feel the jury was not properly instructed is to appeal. And, for the record, our lawyer was EXCEPTIONAL.” The right to speak our mind in real life situations and/or to type words in cyberspace is a unique freedom cherished by Canadian citizens, but now freedom of speech in under threat because of the misguided verdict in the “Warman vs Fournier et al” trail. Now in 2013, any self-appointed censor can rely on their JUST US system to censor blogosphere debates on any topics or issues. This is evidence that political correctness has morphed into a totalitarian monster that must be tamed. Our inate right to speak our honestly held opinions without fear of being sued or saddled with a gag order must be restored for ourselves, our children, and, our grandchildren. As it stands now, our right of free expression as granted by the Charter of Rights is being trumped by outdated, libel law, with its attached punitive consequences. All Canadians now will suffer an extreme injustice because of fatal flaws in Canadian jurisprudence. This is because under Canada's libel law there is more protection for the Plaintiff than for the Defendant, as the burden of proof has become the responsibility of the Defendant to prove that any typed words in cyberspace do not damage the "honour" of another individual. Based on the jury verdict in the "Warman vs Fournier et al," Canada's defamation laws now permit a Plaintiff to abuse and harass a Defendant - who has little or no fair recourse in their tainted JUST US system. Paul Fromm, with the Free Dominion 4, after testifying at their trial in Ottawa, Sept. 17.

Paul Fromm in Ottawa, Sept. 17, with the Free Dominion 4, after testifying for them.

 

 

Anti-free speech “human rights” legislation under which Warman thrived — filing several dozen Sec. 13 (Internet censorship) complaints under the Canadian Human Rights Act — makes criticism of privileged minorities dangerous. The definition of “hate” or “contempt” is hazy. Usually, neither truth nor intent are defences. That’s assault number one. The effect of such restrictions is to mute or silence criticism of the immigration invasion, multiculturalism, minority-influenced conspiracies, or the homosexual agenda. Lively, outspoken public debate is stifled.

Assault number two is the sort of persecution by libel suits or threats of such suits. That makes criticism of individuals seen to be actively limiting the free expression of others difficult. Libel judgements are capricious. CAFE and I were founded to have defamed Richard Warman for dubbing him a “censor” for his activites. Yet, the late free speech champion Doug Christie was deemed not to have been defamed when a Vancouver talk jock radio host smeared him as “a perverted monster” for having defended Ernst Zundel.

We understand the Free Dominion 4 are actively considering an appeal.

I attach an excellent commentary by a long-time champion of individual liberties, Tom Kennedy.

 

Paul Fromm

Director

Canadian Association for Free Expression

 

The Day Free Speech Died In Canada – October 2, 2013
By Tom J. Kennedy
My heart skipped a beat when I read Xanthippa’s post titled “The Verdict” on Wednesday evening, October 2, 2013:
“I’ll be brief.
Today is a sad, sad day for all Canadians – and a tragic one for all freedom loving people.
The jury foreperson giggled as she said: “The answer is 42!”
As in, $42,000 awarded to Mr. Warman in damages…
In addition, Mr. Warman is seeking an injunction against Free Dominion – a gag order – that would see the Fourniers thrown into jail if anyone even mentions his name on Free Dominion, no matter how quickly it would be taken down.  If that happens, Free Dominion will cease to exist…
I’ll have some details later – am too upset to write more now.” – Xanthippa
Permit me to draw attention to the infamous statement from the Zundel Hearing in Toronto, Ontario, Canada in the 1990’s wherein Commissioner Pensa is quoted as saying:
“It is the finding of this Tribunal that truth is not an issue before us. Parliament has spoken. The use of telephone messages for purposes prohibited by Section 13 of the Act cannot be justified by asserting that such messages are truthful. The sole issue is whether such communications are likely to expose a person or persons to hatred or contempt.”
In summary, the Commissioner Pensa determined that “truth is no defense,” or in other words in any case before that quasi-judicial body – the Human Rights Tribunal “truth doesn’t matter.”  It seems that the absurd statement “truth is no defense” has crept into the regular court system in this 21st Century.
Read Mark Weber’s article: “The Importance of the Zundel Hearing in Toronto.“
A most important cyber-defamation case – “Warman vs Fournieret al”  began on September 9, 2013 and ended on October 2, 2013 at a civil court in Ottawa, Ontario, Canada.
Mark Fournier writes at Free Dominion about the day that free speech died in Canada:
“The jury decided that we had not taken down the complained of posts fast enough so we were therefore responsible for all the posts made by third parties. This put us in a position where we had no defenses to protect ourselves. We weren’t allowed to put in evidence to prove the truth of many of the facts (such as the ‪David Icke video), we weren’t allowed to say what we believed commenters were referring to in their comments, and we couldn’t testify to the state of mind, or motivation of, anonymous posters. We were held responsible for the words of others and systematically stripped of every possible defense.”
The verdict by the jury in the “Warman vs Fournier et al” has effectively killed good, old-fashioned, political discourse and debate in cyberspace, in Canada. Even minor insults and common hyperbole of innocent nature and made-up words not in the dictionary, can now be construed as defamation.
The law lesson learned from the verdict is that defamation court actions are designed to stifle online discourse and healthy political debates that used to commonly take place around kitchen tables and then graduated to cyberspace are now less likely to happen in the blogosphere, since all owners of blogs, forums, chat rooms etc. must now become ruthless, editorial police to avoid the risk of libel suits.
The law definition of libel states: “Any communication that is likely to lower that person in the estimation of reasonable people and in particular to cause that person to be regarded with feelings of hatred, contempt, ridicule, fear or dislike.”
Each and every Canadian ought to now be motivated to action in a gallant effort to redeem free speech in Canada. Most likely, our elected representatives are not yet aware of the significant impact that the verdict in the Warman vs Fournier et al is having on our fragile and ever diminishing right of free speech in Canada.
Canadians everywhere are invited and encouraged to communicate with their respective, elected Members of Parliament re: Canada’s oppressive and outdated libel laws and the outcome of the “Warman vs Fournier et al” trial.
Read Jeffrey Sahllit’s article: “It’s time to reform Canadianlibel law“
And Alan Shanoff’s article: “Timeto abolish outdated defamatory libel offence“
To redeem free speech in Canada, the libel laws must be revised to modernize the original words of the Magna Carta that was written in the 13th Century when King John was the feared enemy of freedom and liberty. 
Lord Denning referred to the Magna Carta as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.”
In retrospect, perhaps the six member jury would have returned with a different verdict if the Plaintiff’s responsibility was to prove that the statements were typed with malicious intent.
In this 21st Century, the power of the Plaintiff in a cyber-defamation case becomes the feared despot to freedom of speech.
Connie Fournier explains at Free Dominion, the challenge she and Mark faced as Defendants:
“The witnesses we brought in were to prove specific facts that we needed to prove were true in order for a fair comment defense to apply. The fair comment defense doesn’t apply if the comment is not based on “proven facts”. Since there were specific comments about a protest at Paul Fromm’s house and about events with David Icke so we needed them to give testimony about them. Newspaper articles and even tribunal transcripts were considered hearsay and much of the evidence we brought was excluded by the judge.
You cannot prove a fact in court unless you call a real person who was there. So you can see how impossible it is to vet every post that is posted on an internet forum and, when you are facing getting witnesses to prove facts behind sixty-some posts, it is an enormous burden.
In our case, as our opponents found out that we had witnesses to prove certain facts, they removed the related posts from their claim. In fact, they waited until the day of the trial when they knew for a fact that David Icke was coming, to remove the posts related to him and they tried to get the judge to block his testimony (after we had already paid for his flight and accommodations). In their haste, they forgot to remove ONE of those allegations so he testified. But, that is how it went all the way through the trial.
The strategy was NOT to attack Richard Warman’s character. We focused on proving facts related to specific posts, and we went as far as we could in trying to persuade the jury that the posts were not defamatory, but our hands were tied there. The judge is in charge of giving them the law and the definition of defamation that he gave them would encompass any negative comment. It was “any communication that is likely to lower that person in the estimation of reasonable people and in particular to cause that person to be regarded with feelings of hatred, contempt, ridicule, fear, or dislike.”
We were not allowed to refer to any case law that gave a broader definition, and the judge specifically refused to give the jury case law relating to the extra latitude that should be given to “political speech”. I was stopped from giving my opinion as to how comments are interpreted in an online forum context because I was not an “expert witness”, and every time I tried to explain the context of an anonymous comment or what I thought was the motivation behind a post, I was not allowed to continue.
Anyway, you can only go so far when the judge has the final word on the evidence the jury will be allowed to see. The only recourse when you feel the jury was not properly instructed is to appeal.
And, for the record, our lawyer was EXCEPTIONAL.”
The right to speak our mind in real life situations and/or to type words in cyberspace is a unique freedom cherished by Canadian citizens, but now freedom of speech in under threat because of the misguided verdict in the “Warman vs Fournier et al” trail.
Now in 2013, any self-appointed censor can rely on their JUST US system to censor blogosphere debates on any topics or issues. This is evidence that political correctness has morphed into a totalitarian monster that must be tamed.
Our inate right to speak our honestly held opinions without fear of being sued or saddled with a gag order must be restored for ourselves, our children, and, our grandchildren.
As it stands now, our right of free expression as granted by the Charter of Rights is being trumped by outdated, libel law, with its attached punitive consequences. All Canadians now will suffer an extreme injustice because of fatal flaws in Canadian jurisprudence.
This is because under Canada’s libel law there is more protection for the Plaintiff than for the Defendant, as the burden of proof has become the responsibility of the Defendant to prove that any typed words in cyberspace do not damage the “honour” of another individual.
Based on the jury verdict in the “Warman vs Fournier et al,” Canada’s defamation laws now permit a Plaintiff to abuse and harass a Defendant – who has little or no fair recourse in their tainted JUST US system.