Day 1 of the Baglow v. Smith & Fourniers <\/i>Defamation Hearing<\/strong><\/span><\/div>\n
March 24, 2014, OTTAWA: Today was an interesting day in an Ottawa courtroom at the pseudonymous defamation trial of \u201cDr Dawg<\/i>\u201d vs \u201cPeter O\u2019Donnell<\/i>\u201d. It started off with a bang and ended early with the judge handing out a homework assignment for the defendants.
\nThis long running internet defamation case started back in August 2010, when the defendant using the internet pseudonym \u201cPeter O\u2019Donnell<\/i>\u201d posted a comment on the FreeDominion message board which accused the plaintiff who uses the internet pseudonym \u201cDr Dawg<\/i>\u201d, of being \u201cone of the Taliban’s more vocal supporters\u201d [<\/span>1<\/span><\/span><\/a>]. The plaintiff \u201cDr Dawg<\/i>\u201d (a.k.a John Baglow) then filed a defamation action against the owners\/system operators of FreeDominion; Mark and Connie Fournier, and the poster \u201cPeter O\u2019Donnell<\/i>\u201d (a.k.a. Roger Smith). The whole story gets even more bizarre as the <\/span>allegedly defamatory comment was posted on a webserver in Panama<\/span><\/span><\/a>.<\/p>\n
Shortly after receiving the defamation notice, Mark and Connie Fournier applied to the Ontario Superior Court of Justic<\/i>e for a summary judgment dismissing the libel claim by \u201cDr Dawg<\/i>\u201d. 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.<\/p>\n
$\"\"$ <\/p>\n
Mark & Connie Fournier, Recipients of the<\/em><\/strong><\/span><\/p>\n
George Orwell Free Speech Award, Victoria, BC, 2009<\/em><\/strong><\/p>\n
On August 30, 2011, Justice Annis of the Ontario Superior Court of Justice<\/i> summarily tossed out the defamation claim by \u201cDr Dawg<\/i>\u201d. The judge found that the statement by \u201cPeter O\u2019Donnell<\/i>\u201d 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<\/i>) [See full decision here: <\/span>http:\/\/canlii.ca\/t\/fmvmp<\/span><\/span><\/a>]<\/p>\n
\u201cDr Dawg<\/i>\u201d appealed that decision to the Court of Appeal for Ontario<\/i> saying that the original Judge (Annis) erring in granting the summary judgment dismissing \u201cDr. Dawgs<\/i>\u201d defamation action. The Court of Appeal for Ontario<\/i> ruled on June 14, 2012 in \u201cDr Dawgs<\/i>\u201d favour that \u201cThe 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.<\/i>\u201d (Quoted from case summary) [See full decision here: <\/span>http:\/\/canlii.ca\/t\/frphh<\/span><\/span><\/a>]<\/p>\n
That is a seriously condensed version of the three year back story to this case \u2026 now let\u2019s fast forward to what happened today in the Ottawa Courtroom.<\/p>\n
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.
\nThe parties at the hearing were:<\/p>\n
Plaintiff:<\/strong> (person who brought the defamation action)
\n\u00b7\u201cDr Dawg\u201d (a.k.a John Baglow)
\n\u00b7Peter Burnet, lawyer
\nDefendants<\/strong>: (defending the defamation action)
\n\u00b7\u201cPeter O\u2019Donnell\u201d (a.k.a Roger Smith) \u2013 Self-represented
\n\u00b7Connie Fournier (self-represented)
\n\u00b7Mark Fournier (represented by Barbara Kulaszka)
\n\u00b7Barbara Kulaszka, lawyer
\nInterested Parties<\/strong>: (These are \u2018<\/span>friends of the court<\/span><\/span><\/a>\u2019 who make submissions to assist the judge in coming to her decision, based on the organizations they represent)
\n\u00b7Mr. Frankel, lawyer (Representing the Canadian Civil Liberties Association, who support freedom of expression)
\nThe day started off around 10:15am, with a series of \u2018housekeeping\u2019 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\u2019s opening remarks were quite surprising. She said that she has \u201cnever been on a blog before. Never uses the internet, except for a bit of email and doesn\u2019t use twitter or facebook<\/i>\u201d. The judge summed it up as \u201cI\u2019m a clean slate when it comes to the internet\u201d.<\/i>
\n<\/span>
\n<\/i>
\nPerhaps 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\u2019s inner workings in relation to a blog\u2019s 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 <\/span>Mesopotamian Scribe<\/span><\/span><\/a> the intricacies of the <\/span>Gutenberg Movable Type printing press<\/span><\/span><\/a> and how revolutionary<\/i> the concept of a movable type printing press was. The revolutionary informational change in society brought forth by the Internet is undeniable and transformational.<\/p>\n
This Madame Justice<\/i> has been tasked with a very important decision which will have impacts on the very core of political discourse and she doesn\u2019t 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!).<\/p>\n
Even if \u201cDr Dawg<\/i>\u201d is right and it is defamatory to say what \u201cPeter O\u2019Donnell<\/i>\u201d said, to have this important fundamental question of online political discourse decided by a Judge who has \u201cnever been on a blog<\/i>\u201d is a pretty scary thought and unfair to BOTH<\/i> 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 <\/span>another reason why Ontario\u2019s defamation law needs to be repealed in its entirety<\/span><\/span><\/a> \u2026 but I digress<\/i>, who knows, this judge might well come out with a great decision on an important and novel question of law that would make <\/span>Lady Justice<\/span><\/span><\/a> blush with envy.<\/p>\n
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 \u201cDr Dawgs<\/i>\u201d lawyer, Peter Burnet.
\n<\/span><\/p>\n
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(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) <\/span>lemire.com<\/span><\/span><\/a><\/span> for corrections)<\/span><\/i><\/div>\n<\/div>\n
Trial \u2013 Day 1:
\n<\/strong>Mr. Burnet went through the evidence and highlighted who \u201cDr Dawg<\/i>\u201d is in real life a.k.a John Baglow. \u201cDr Dawg<\/i>\u201d is a retired civil servant and labour activist who blogs on a website called Dawgs Blog, which is his \u201cprinciple vehicle\u201d for posting commentary. Burnet proclaimed that \u201cDr. Dawgs<\/i>\u201d views are \u201cproudly lefist\u201d. Furthermore \u201cDr Dawg<\/i>\u201d \u201cwelcomes the opportunity to debate those who do not share his views\u201d. \u201cDr Dawg<\/i>\u201d believes that the defendants are \u201cextreme right-wing\u201d. In regards to the effect<\/i> of the defamatory posting by \u201cPeter O\u2019Donnell<\/i>\u201d: \u201cDr. Dawg<\/i>\u201d \u201ccannot identify any loss of income and has not interfered in his professional life\u201d. \u201cDr Dawg<\/i>\u201d is looking for \u2018damages at large\u2019, as opposed to a breakdown on special, general and punitive damages. Mr. Burnet stated that \u201cthis case is not about freedom of speech\u201d and furthermore, \u201cthis case is not a SLAPP suit\u201d.<\/p>\n
Up next was Barbara Kulaszka, who is representing Mark Fournier. Many readers to my blog will recognize that <\/span>Barbara Kulaszka was also my lawyer<\/span><\/span><\/a> and is the one who exposed the censorship provisions of the now repealed <\/span>Section 13 of the Canadian Human Rights Act<\/span><\/span><\/a>. 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<\/i>, and highlighted the case of Kari Simpson. Mrs. Kulaszka raised the fact that the complained of words (defamatory content) \u201cidentifies only Dr Dawg\u201d, the internet pseudonym of a.k.a. John Baglow. In effect \u201cBaglow has a different persona online\u201d. 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<\/i>; who in \u2018real life\u2019 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.<\/p>\n
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\u2019s opening remarks were to the point and highly directed at the effect of being hit with a lawsuit \u2013 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 \u201cpart of an ongoing cyber-bullying campaign\u201d against her, which included \u201ctaunting and harassing on Twitter\u201d and \u201cthreatening and attacking others who associated with her\u201d. Connie expressed some serious reservations about being \u201csexualized\u201d in the ongoing heated political discourse surrounding this case, which included comments such as she was a \u201cfreeDominatrix\u201d.<\/p>\n
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 \u201cdiscussions with Dr. Dawg are more like a ballroom brawl than a dinner party\u201d. 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.<\/p>\n
Up next was \u201cPeter O\u2019Donnell<\/i>\u201d 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 \u201cfreedominion satisfies a need in the opinion marketplace of ideas\u201d and is not an \u201cextreme right wing website\u201d. In reference to the allegedly defamatory posting, Mr. Smith stated that \u201c5… maybe 6 people read the impugned words\u201d.
\nRoger Smith summed up his views on the trial in 6 concise words \u201cthis entire process is a travesty!\u201d When the judge asked about his posting, Mr. Smith answered \u201cpolitical opinions should not be adjudicated in courts\u201d<\/p>\n
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\u2019s 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 \u201cdevelop in accordance with the Charters<\/i> protections for freedom of expression in mind.\u201d
\nThe CCLA\u2019s position has 5 pillars:
\n1.Heated political debate on the internet should be factored into the test of a \u201creasonable person\u201d with respect to the context of the overall debate
\n2.Context of the meaning<\/i> of the words is critical.
\n3.Administrators and blog operators should not be held to a strict liability<\/i> 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.
\n4.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
\n5.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 \u201cnot be restricted to the four corners of the case\u201d.
\nThat was the end of the opening statements by the parties.<\/p>\n
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 \u201cblindsiding\u201d 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.<\/p>\n
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 \u201cDr Dawgs<\/i>\u201d lawyer Mr. Barnet.<\/p>\n
The trial continues tomorrow at 10:00am in the Ottawa courthouse.<\/p>\n
<\/span>http:\/\/blog.freedomsite.org\/<\/span>20<\/span>14\/03\/day-1-of-baglow-v-smith-fourniers.html<\/span><\/span><\/span><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"
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 \u201cDr Dawg\u201d vs \u201cPeter O\u2019Donnell\u201d. It started off with a … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[243,244,222,173,245],"_links":{"self":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/644"}],"collection":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=644"}],"version-history":[{"count":2,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/644\/revisions"}],"predecessor-version":[{"id":646,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=\/wp\/v2\/posts\/644\/revisions\/646"}],"wp:attachment":[{"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=644"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=644"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/cafe.nfshost.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=644"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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