Sunday, June 29, 2014

The Obituary of CHRC Censorship [Part 2]: Modus Operandi of the CHRC: "simple forced deletion of the message"

The Obituary of CHRC Censorship [Part 2]

Modus Operandi of the CHRC: “simple forced deletion of the message”




[June 29, 2014] Section 13 of the Canadian “Human Rights” Act was a monstrosity since its inception in 1977.  It was a piece of targeted legislation to silence one man and his telephone answering machine.  But why on earth was it ever put into the Canadian Human Rights Act in the first place?  The rest of the Act; is about employment, accommodation, services, etc. And the “Human Rights” Act, was remedial; Unlike the Criminal Code of Canada, it was not meant “to assign or to punish moral blameworthiness” to the people involved. 

Why would the censors choose a remedial piece of legislation to target people, when Canada has criminal speech prohibitions, which could actually imprison people?  The answer is simple, they didn’t want a Section 13 case to generate any publicity, the way a criminal charge would.  They wanted to quietly censor people, in the back room; without anyone seeing what they were really up to.


In a letter dated November 13, 1975, Ontario’s Deputy Attorney General, F.W. Callaghan outlined some of the problems they faced when trying to “get” a man named John Ross Taylor. In reference to Taylor’s taped telephone answering machine, Callaghan stated:

“The messages usually are topical and political and focus on a wide variety of subjects.  However, the emphasis always is racial and federal immigration policies frequently are criticized.”

Callaghan continued in his letter: “The messages discuss such matters as immigration, integration and urban crime, all of which clearly are matters of public interest.”

The real intent of Section 13 was to silence legitimate non-violent criticism of immigration, crime, multiculturalism and integration.  Ontario’s Deputy AG Callaghan summed up the true motivation behind silencing Taylor using the Human Rights Act:

The simple forced deletion of the message which I have proposed could have a major advantage over a criminal prosecution in that, presumably, it would not be attended by great publicity whereas a criminal prosecution, through publicity and polarization, might promote the mischief which it sought to suppress.”

In other words, Ontario’s Deputy AG wanted to silence the messenger behind closed doors, “simple forced deletion” as he calls it; and hoped that no one would pay any attention to the gross infringements to freedom of speech that was occurring.  And sadly for many years that was the case; marginalized people were crushed under the weight of the repressive state apparatus, without anyone standing up for them.

There was some public interest in the John Ross Taylor case, because Mr. Taylor was the perfect media “villain”.   He was totally unrepentant and steadfastly believed that what he was doing was proper and righteous; some have claimed that in a criminal court, Mr. Taylor’s charge would be thrown out because he did not have the mental faculties to stand trial.  Mr. Taylor put a notation in the phone book which read “White Power Message--967-7777”.  Certainly most people might have an idea what that message was about prior to calling, its not like Mr. Taylor asked people to call the Animal Rescue, and when you called you received a "white power message". 

In fact, when Mr. Taylor first appeared before the Canadian “Human Rights” Tribunal, he was totally overwhelmed.  Part of the Taylor decisions reads “It would appear from Mr. Taylor’s cross-examination of witnesses and his argument that he was attempting to establish the truth of what he said about Jews in his tape recorded statements. Strange as it may sound, the establishment of truth is not in issue in this case.”  Yes, strange indeed; this is Canada after all, not North Korea.  Was Kim Jong Un presiding at the Hearing? No worse, it was Francis Leddy!

With Truth is no defence; it is not surprising that the Tribunal ordered Mr. Taylor to stop putting messages on his answering machine and slapped a lifetime speech ban on him.  Mr. Taylor, not one to be pushed around by what some have called a Kangaroo court; he left the Tribunal hearing, and immediately recorded a new message on his answering machine.  That led to a Contempt of Court charge, for which Mr. Taylor was imprisoned for a year.  As soon as Mr. Taylor got out, he said a big F.U. to censorship, and recorded another message on his answering machine.  This led to yet another Contempt of Court charge and a one year jail sentence.  In an odd twist of circumstances, the prison officials actually just let Mr. Taylor out after a few days of his second year-long jail sentence.  

By this time, word of Mr. Taylors exploits reached Western Canada, where lawyer Douglas Christie heard about the treatment of Mr. Taylor and was disgusted.  He immediately got involved and represented Mr. Taylor all the way to the Supreme Court of Canada.  The ‘Supremes’ narrowly upheld Section 13 of the Canadian Human Rights Act by the slimmest of margins – 4 to 3.  Writing for the dissenters on the Supreme Court, Madame Justice McLachlin found that “Section 13(1) of the Act infringes the guarantee of freedom of expression in s. 2(b) of the Charter.  Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non-violent form of expression, this activity falls within the sphere of the conduct protected by s. 2(b).”

Ontario’s Deputy Attorney General, F.W. Callaghan did not completely get his wish.  Not all Section 13 cases “would not be attended by great publicity” but in fact, most were.  In the years after Taylor, numerous marginalized people and organizations were crushed by the censors.  Terry Long, Bill Harcus, Kevin Lew, Tony MacLeer, Canadian Liberty Net, Charles Scott, Church of Christ in Israel, Randy Johnson, Micka and Machiavelli Emprise Inc., Ernst Zundel, Fred Kyburz, Eldon Warman, Craig Harrison, etc, etc, etc.

Hate laws only exist in Canada because very few Canadians even know about them.  Canadians are perfectly capable of handling the back and forth of debate and do not need the nanny state watching over their shoulders looking for anything that might be “offensive”.  Hate laws are political tools to silence certain people.  That’s why almost 100% of cases are against marginalized White Canadians, of a certain political stripe, which they categorize as “nazi” or “anti-Semitic”.  

In the case of the Canadian “Human Rights” Commission, 100% of the cases they have prosecuted are against White Canadians.  It is ironic, that the CHRC goes around to various employers and harasses them about the percentage of minorities they hire, but are blind to the fact they are in fact the biggest racists of all, and only accept complaints against one race.  For the CHRC, the only haters in Canada have white skin. It really calls out to file a CHRC complaint!  Over the years, to show the hypocrisy of the CHRC, some people have filed complaints against Muslims who use hate speech in their public writings.  Surprise surprise…. The CHRC did not accept those complaints.  Again, white skin is the main deciding factor for the Canadian "Human Rights" Commission to accept a complaint or not.

Trifecta against Censorship

While Section 13 was happily censoring marginalized Canadians, three cases bubbled to the surface and changed the entire game.  Firstly, was my case, which started in 2003 and was the most definitive Constitutional Challenge against Section 13 which had ever been mounted.  Secondly, was the case(s) against Ezra Levant.  These were “hate speech” cases filed in Alberta and at the Federal level.  And thirdly were the complaints against Macleans Magazine and Mark Steyn, filed at both the provincial (Ontario and British Columbia) and Federal level.

While there were different complainants in the three cases, the end result was the same.  All three of us were not about to shut up and go away; Ezra Levant and Mark Steyn were journalists who wrote for major publications in Canada and I was a webmaster and writer who published the most critical information on the Internet about the CHRC and their corrupt and abusive methods

Along with me posting as much source material and documentation on the Internet as I could get my hands on, was my super talented lawyer and Section 13 expert – Barbara Kulaszka.  Barbara is a dedicated warrior for freedom and it was mostly due to her that all the evidence about the corruption, spying, lying and conniving of the CHRC came to light.

Over the next few days I am going to go into detail about the three main CHRC / “Human Rights” cases, which brought an end to Section 13.  Each case was so important in the overall battle; they deserve a detailed look as part of the CHRC’s censorship obituary.

  1. The Obituary of CHRC Censorship [Part 1]: http://blog.freedomsite.org/2014/06/section-13-is-officially-repealed.html


-Marc Lemire
Webmaster; Freedomsite.org
Webmaster; StopSection13.com

[1]  Heading picture from Radical Press

Thursday, June 26, 2014

Section 13 is Officially Repealed: The Obituary of CHRC Censorship [Part 1]

Section 13 is Officially Repealed:

The Obituary of CHRC Censorship [Part 1]

 

 

[June 26, 2014]  At midnight tonight, Canadians can breathe a little easier and speak their minds online, thanks to Bill C-304, which officially comes into ‘force’ on June 27, 2014 and repeals Section 13 of the Canadian “Human Rights” Act.  Bill C-304 stripped the censorship powers from the ravenous censors at the Canadian “Human Rights” Commission who dragged hundreds of Canadian’s through a rigged Tribunal process – success guaranteed; a complete 100% conviction rate!

 

Section 13 of the Canadian “Human Rights” Act was passed into law in 1977, and in the intervening 37 years, it was used and abused by a fanatical band of censors at the Canadian Human Rights Commission to harass and silence Canadians of all political strips.  Originally Section 13 only applied to telephone answering machines, where people could leave an outgoing “hate” message.  That is a pretty odd thing to have covered by a law, but it was carefully crafted in order to silence one man - John Ross Taylor – who was a rather eccentric elderly gentleman that recorded his viewpoints on a telephone answering machine which people could call into and listen.

 

As is typical with over-paid fanatical bureaucrats, it wasn’t enough to just harass a couple of Canadians who dared to record their thoughts on a telephone answering machine.  Mission creep set in; and the CHRC took it upon themselves to reinterpret Section 13 and claim that the entire Internet was in their jurisdiction because it was part of “a means of the facilities of a telecommunication undertaking within the legislative authority of Parliament”.  In other words, because in the 1990’s you needed a telephone and a modem to access the Internet, the CHRC claimed they had jurisdiction and accepted a complaint against Holocaust Revisionist and (then) German-Canadian publisher, Ernst Zundel for posting on the Internet, which were allegedly associated with him.  That was the very first Internet “hate” case in the 1990. 

 

The CHRC was beyond pleased that it could scour and others could tame” the internet.  While the jury was still out if the original intent of Section 13 could be applied to the Internet, the Federal Government slipped one line into Canada’s Anti-Terrorism Legislation (2001 – Bill C-36) which gave the CHRC carte blanche to police and censor the Internet.

 

Once it was clear that the CHRC could police the internet, the CHRC went on a Blitzkrieg to shut down websites. Without a ruling, or court order, the CHRC starting writing to Internet Service Providers of people they wanted to Silence.  Amongst those people were Ernst Zundel, UUNET, Ottawa FreeNet, various people on AOL who were critical of homosexuality, and various other websites.

 

The real problem the CHRC had was that no one was complaining to them.  They had invested all this money; they had a special “anti-hate” team, special “anti-hate” committee, special lawyers, a special Compliance Manual for “hate cases”, policy advisors, etc; but no one was complaining to them.  (Gee, sounds like Canadians could handle free speech on the internet just fine without them).  The CHRC even went around to various organizations begging them to lay complaints (2006:  CHRC head ‘hate’ policy advisor visits “A couple representatives of the Muslim community” to stir up some complaints).  The problem with complaints disappeared when a former employee of the CHRC filed upwards of 26 complaints with the CHRC over internet based content.

 

100% conviction rate

 

In the 37 years that Section 13 was a law in Canada, not a single person ever ultimately won a case. Yes, you read that correctly; the CHRC has a 100% conviction rate.  I was the only person to come close – in that the Canadian Human Rights Tribunal threw out the case against me, but the wacky Federal Court of Canada reversed it and found me guilty of a single posting on my website, what I neither wrote nor approved of.

 

Not only is there a 100% rate, there is also a 100% lifetime speech ban rate.  Every single person who has been taken to the Human Rights Tribunal is now under lifetime speech ban.  This lifetime speech ban (called a Cease and Desist order) forces the person to never post material again on the Internet which is “likely to expose a person or persons to hatred or contempt..”.  If violated it would mean a “contempt of court” charge and up to five years in jail.  So far multiple people have been imprisoned for violating the lifetime speech ban.  The jail sentences have been up to (and more) than a year for some people.

 

 

Section 13 – a Disgrace for Canada (Steyn and Levant)

 

When Section 13 was just used to attack marginalized and poor Canadians (most people charged under Section 13 could not even afford a lawyer), it was not a major public issue.  But the CHRC just could not leave well enough alone.  The CHRC – drunk with power and a 100% conviction rate – looked to new horizons to expand their censorship powers. This ultimately proved to be their biggest tactical mistake.

 

The CHRC accepted a ‘hate’ complaint against Macleans Magazine and Mark Steyn.  This coincided with a ‘hate speech’ complaint against Ezra Levant for publishing the Danish cartoons of Mohammed. Well… the preverbal “sh*t hit the fan” and suddenly the backroom censorship of marginal people by the CHRC; their tactics and the corrupt system they operated in; was front page news. 

 

Newspapers and magazines across Canada denounced the CHRC and Section 13.  Mark Steyn was not about to shut up either.  For years, Steyn or the mainstream media didn’t really know or pay much attention to the machinations of the CHRC censors, well… that was all about to change.

 

 

-----------------

 

 

Tune in tomorrow for Part 2 of my Section 13 obituary.

 

 

http://www.freedomsite.org

http://www.stopsection13.com

 

 

 

 

-Marc Lemire

Section 13 expert

Webmaster, Freedomsite

 

 

 

 

Tuesday, April 1, 2014

Santa Makes up the all elusive "Sixth" Eye in Mass Surveillance! US Drones dispatched to drop Hellfire Missiles on those caught on the "Naughty" list

Santa Makes up the all elusive “Sixth” Eye in Mass Surveillance!

 

US Drones dispatched to drop Hellfire Missiles on those caught on the “Naughty” list

 

 

 

North Pole Transparency Report Reveals Naughty/Nice Request

The first-ever transparency report issued by Santa's Workshop has raised troubling questions about the 0-999 national security requests for the entire so-called "Naughty and Nice List," which the NSA has categorized as simple metadata. Santa's participation in this program answers lingering questions about a "Sixth Eye" described in previously released top secret documents that "knows when [non-US persons] are sleeping, and knows when [non-US persons] are awake."

 

New Report: Up To Four Communications Per Year Not "Touched" By NSA

As documents released by Edward Snowden continue to reveal NSA activities, the number of communications not definitively tied to government snooping is up to a maximum of four per year. That number has been continuously adjusted downward over the last eight months, with especially sharp decreases after this past month's revelation of IMPENDINGSLUMBER, a program designed to intercept children's bedtime stories; FORGETFULSHOPPER, which tracks details from passive aggressive notes affixed by roommates to household refrigerators; and SOLITARYSINGER, which records individual musical stylings performed in the shower.

 

Leaked USTR Documents Show Heightened Secrecy Plan

Citing high-profile leaks and worldwide protests that have threatened to derail the Trans-Pacific Partnership (TPP), the U.S. Trade Representative has developed plans to conduct future negotiations in more complete secrecy, according to leaked documents. The documents note that leaks are only possible because the Trade Representative's office itself has access to the negotiations. To avoid this glaring security lapse, future negotiations will be held in completely empty rooms, and negotiators will not be allowed access.

 

 

From: https://www.eff.org/pages/04/01

 

 

 

 

 

Friday, March 28, 2014

Day 4 of the Baglow v. Smith & Fourniers Defamation Hearing: Lawyer Outs Himself!

Day 4 of the Baglow v. Smith & Fourniers Defamation Hearing: Lawyer Outs Himself!


Defamation law is oppressive and Lawyer Outs himself during Baglow testimony!

March 27, 2014 OTTAWA:  Today was the fourth day of the pseudonymous defamation trial of “Dr Dawg” vs “Peter O’Donnell”, and what an exciting day it was.

For background on the case and my comments on the trial so far, see my blog postings here:

  1. http://blog.freedomsite.org/2014/03/day-1-of-baglow-v-smith-fourniers.html
  2. http://blog.freedomsite.org/2014/03/day-2-of-baglow-v-smith-fourniers.html
  3. http://blog.freedomsite.org/2014/03/day-3-of-baglow-v-smith-fourniers.html


As the trial got underway today, the whole irrelevance of it all really struck me.  The allegedly defamatory words (called impugned words at the hearing) written by internet pseudonym “Peter O’Donnell” on the FreeDominion website out of Panama, run by Mark and Connie Fournier was a sum total of 7 words.   YES, YOU READ THAT CORRECTLY.  Seven words!  Now the trial is looking like it will last at least two weeks. On top of that time was the summary motion back in 2011 (1 day hearing) and the Appeals Court of Ontario in 2012 (1 day hearing).  Then add to that the hundreds of hours of preparation time for both the defendants and the plaintiff. 

In total; the trial and time spent over 7 mere words, will amount to 12 hearing days and at least 40 days of preparation for both sides, which equals 52 days of trial and preparation time – and those are seriously conservative numbers.  Just the time it must have taken to prepare the defence in this matter must have been enormous – when the trial started, the defence trotted in at least 3 boxes of documents!  In total, it will end up being close to 7.5 days for each impugned word!  Seriously, what the heck has happened to defamation law in Ontario?

When the blogosphere went to battle over the now repealed Section 13 of the Canadian Human Rights Act, (Canada’s internet censorship legislation) one of the strongest arguments the side supporting freedom of speech had, was that with the “Human Rights” Act was rigged and that the Process was the Punishment.  With Section 13 and its lengthy Tribunal process and rules made up as they went along; the system itself ground little people into the dirt all the while using the unlimited power and resources of the state.  The best example is the “human rights” case against me which took over TEN years of my life!  After seeing a defamation case in person, I can surely say that the process is the punishment here too, the only real exception is that in a defamation hearing, the process is a punishment – potentially – for both sides.  (And by “potentially”, let me quote “Dr Dawg” from his testimony today, “a company like McDonalds could use defamation law via a SLAPP suit to harass critics of their food/company”. In the case of rich companies or individuals, the process being a punishment via civil suits is the whole point!)

The blogosphere rallied together to get rid of Section 13, now it’s time to rally together to amend, or repeal all together, defamation law and its applicability to the Internet.  The best disinfectant to horrible laws is to shine a light on them.  The light of truth and honestly was shone on Section 13, and within a few years, it was repealed. I urge all bloggers, writers, free thinkers and freedom lovers to take a serious look at Ontario’s ridiculous defamation laws and throw off this easily abusable yok of speech restriction. 

To quote John Gilmore of the EFF, “The internet interprets censorship as damage and routes around it.”  Let’s put that into law, so that writers can express themselves on matters of public interest, without the fear of having to spend tens of thousands of dollars defending themselves.   The CCLA has some good ideas on how to reform the law, and it is really worth a read: Supporting Anti-SLAPP legislation.

Day 4 of the trial:

The day started off with “Dr Dawg” a.k.a John Baglow, still under direct examination by his lawyer Peter Burnet.  His testimony centered on answering some of the claims which were put forward by self-represented defendant Connie Fournier in her “Further Particulars” which was ordered by the judge on Monday

To explain a bit more about the “further particulars”, Connie Fournier made a series of allegations in her opening statement to the court.  “Dr Dawgs” lawyer objected strenuously to being “blindsided” by these allegations, so the court ordered Connie Fournier to specify where the evidence was for each of her allegations.  This is what Peter Burnet was questioning “Dr Dawg” over.

There was some discussion between “Dr Dawg” and another blogger named Jay Currie.  In that exchange, Connie Fournier alleged that “Dr Dawg” was only interested in suing her, and not “Peter O’Donnell”, who actually made the comment. 

Dr Dawg” said that “I recall a private exchange with Mr. Currie, which was the problem; they would not take it down”.  Which apparently is why “Dr Dawg” was only interested in suing the owners of FreeDominion.  “Dr Dawg” wanted to remove the comment that he was “one of the Taliban's more vocal supporters” taken down “pronto”.  It is curious that in the course of demanded it be taken down, that “Dr Dawg”, adopted (yet another) alias, that of “Ms Mew” and republished the impugned words on FreeDominion.

In a strange twist, if Mark and Connie Fournier had actually removed the impugned words in the post by “Peter O’Donnell”, the impugned words would actually still be available online in the posting by John Baglow, posting as “Ms Mew” on FreeDominion, where he quoted them as part of his reply.

In terms of the “Peter O’Donnell” posting on FreeDominion, “the continued publication of it really bothered me”.  “Dr Dawg” was “very upset the document was not being taken down”.

At some point “Dr Dawg” made a posting on the Internet and made reference to taking Mark and Connie Fournier’s house and playing “Peter O’Donnells” harpsichord in it.  In reply to questioning he said “it is what it is”.

There was some back and forth about a blogger named “Fernhill”. Apparently she was a “leftist progressive” blogger who mentioned this case and proposed to her readers to support both “Dr Dawg” and Freedominion.  This apparently made “Dr Dawg” “very upset” and left him feeling “betrayed” by her.  Fernhill was a progressive blogger and he wanted her to “pick a side” and that “it was wrong to raise money for the other side”.

At one point, “Dr Dawg” sent a Tweet to the Canada Revenue Agency asking about income tax on donations which were made to the FreeDominion fundraiser on Indiegogo. He did not get an answer to his tweet, but followed up with someone and found out that “gifts” were exempt from income tax.

Harry Abrams of the B’nai Brith called “Dr Dawg” an “anti-Semitic asshole” on his Dawgs Blawg.  “Dr Dawg” left the comment up to cause “discussion” on his blog.  If I understood “Dr Dawgs” testimony, the terms “Anti-Semitic” and “Nazi” had lost their general meanings since it was so overused in blogosphere discourse.  Harry Abrams also accused “Dr Dawg” of some sort of “Blood Libel” (I think in terms in “Dr Dawgs” criticism of Israel?), and “Dr Dawg” left the comment on his blog as an example on how the term is being “misused”, since his readers would understand “the context” in which it was made (which would make it hyperbole and not defamatory).

In terms of the word “anti-Semite” / “anti-Semitic”, “Dr Dawg” said that it is “often misused” and that “people dishonestly use that word in discussions involving the Middle East”.

That finally brought a close to the examination In-Chief by Peter Burnet.  Up next was Barbara Kulaszka who was representing Mark Fournier of FreeDominion.

In terms of the “Dawgs Blawg”, it is “strong commentary about current events. I think I write well and welcome debate”.  In terms of “Dr Dawgs” postings; “controversy brings readers” and when he doesn’t post “visitors drop off very fast”.  His readers are “interested in a progressive left-wing perspective”.  At times “readers frequently challenge him on the facts” via his comment section.

In terms of the Political Blogosphere, “Dr Dawg” likes to “challenge other bloggers” in debate.

Over the course of blogging, “Dr Dawg” has used the “Ms Mew” pseudonym on various websites including FreeDominion and on SmallDeadAnimals (SDA).  He used the “Ms Mew” pseudonym for perhaps “two years” on SDA because his “Dr Dawg” alias was banned.  He always thought that Kate McMillan of SDA would “figure out it was him, since she was very smart” and even had “MENSA” membership (or link to/with Mensa).

In terms of the Canadian Civil Liberties Association and their intervention in the Whatcott case, they are “facilitators” and “willing accomplishes of homophobes” and “hate speech”.

Peter Burnet Outs himself

Most of the day was taken up by Barbara Kulaszka putting various blog posts and comments to “Dr Dawg”, but when she read out a posting on the “Dawgs Blawg” written by a poster named “Peter 1”, “Dr Dawgs” lawyer seemed to grow increasingly agitated.

In an odd Perry Mason like moment – but in reverse – Lawyer Peter Burnet jumped to his feet and blurted out to the court (paraphrasing) “counsel knows that ‘Peter 1’ is me and is introducing this to play games”.  The judge seemed a bit taken a back by this.  Barbara Kulaszka responded that she had no intention of asking who “Peter 1” was and “resents the implication that Mr. Burnet is making”.

There was a long moment of absolute silence in the court, then Barbara Kulaszka moved on and left it in the air about “Peter 1” being “Dr Dawgs” own lawyer Peter Burnet who is a frequent commenter on Dawgs Blawg.

It is ironic that Peter Burnet would out himself as the frequent commenter “Peter 1”.   Interestingly, the posts by “Peter 1” were not necessarily always supportive of the perspectives that “Dr Dawg” took, and in fact, they seemed to argue at times over political perspectives.

The trial continues tomorrow at 9:30am in the Ottawa courthouse.  The cross-examination by Barbara Kulaszka of “Dr Dawg” continues.




(All the comments above 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 [dot] com for corrections)




Wednesday, March 26, 2014

Day 3 of the Baglow v. Smith & Fourniers Defamation Hearing: More Baglow testimony and alleged spoliation of evidence



More Baglow testimony and alleged spoliation of evidence

March 26, 2014 OTTAWA:  Today is the third 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 , and my report of the second day here: http://blog.freedomsite.org/2014/03/day-2-of-baglow-v-smith-fourniers.html
 
The day started off at 9:30 am with “Dr Dawg” a.k.a John Baglow, continuing to testify on his behalf.  Under examination from his lawyer Peter Burnet, “Dr Dawg” started the day off with testimony in response to some of the allegations which the defendant Connie Fournier made in a statement of further particulars, which was requested by the judge on Monday.  The questions surrounded a claim of spoliation of evidence. (Spoliation:  the destruction or material alteration of evidence)

There were some allegations in the Statement of Particulars of the defendants that evidence was hidden or changed in the course of the disclosure phase of the case (and/or as part of a separate motion to have lawyer Peter Burnet removed from the case… more on this below), along with some references to maliciousness.  These allegations relate to the disclosure and/or removing of comments from the “Dawgs Blawg” website in and around the time that the blog was apparently being moved from Google’s Blogger platform to a server run by James Bow (”Dr Dawgs” IT guy) which used the blogging platform Movable Type.  As well as multiple iterations of comment software called Echo, Disqus and Holoscan, in relation to comments that appeared under postings on “Dawgs Blawg”.  (I was not able to follow all of the arguments, but that is basically how I would sum up what I heard, without being able to see any of the documents which were being referred to).

According to “Dr Dawgs” testimony, in 2010 and 2011 people’s comments and conversations which appeared on the “Dawgs Blawg” website (underneath his postings) were hosted by a few companies which specialize in comment posting threads.  These included Holoscan, Echo, Disqus, and build in comment software on the Blogger service.  When “Dr Dawg” signed up with a new web hosting server, he wanted his IT guy to move the postings and the associated comments over to the new website.   

This is where it gets much more convoluted and difficult to explain what happened today.  To make it a bit more understandable, I am going to refer to the old Dawgs Blawg and the new Dawgs Blawg.  The old blog was on the Google blogging platform (drdawgsblawg.blogspot.com) and the new blog was on a Movable Type platform. (drdawgsblawg.ca). The blogging platform just describes the underlying operating system used in the background to host the blog postings.

In trying to move the comments to the new server, “Dr Dawg” explained that “it proved impossible to migrate the comments” over.  By March 2011 the comment service he was using “receiving a ton of junk mail in the comment sections”, so he “switched to Disqus” and was “spectacularly unsuccessful in moving the files” from the old website to the new website. “Dr Dawg” asked his “IT guy”, a person named James Bow to “do your best [in moving the comments to the new server].  I don’t want to lose all those conversations”.

Moving back to the allegedly defamatory words which “Peter O’Donnell” posted on FreeDominion, “Dr Dawg” cut off any notion that the posting was part of a larger discussion across multiple blog sites.  “There was not a discussion between me and Roger Smith across blogs”.  (The claim has been made by the defendants that the defamatory words were part of a larger on-going discussion between “Dr Dawg” and “Peter O’Donnell” and the idea of an on-going discussion was also part of the original summary motion judgment by the court which dismissed “Dr Dawgs” lawsuit

Dr Dawg” found out about the “Peter O’Donnell” posting because “someone alerted me to the post and for the life of me … I racked my brain … and could not remember who”.  When “Dr Dawg” first saw the posting by “Peter O’Donnell”, he was “horrified” and “had a great deal of anger” over it.  In fact was “very angry indeed”.  Dr Dawg” was worried that readers on FreeDominion “who didn’t know me, would go to Google and find out who Dr. Dawg really is”, which would have a negative impact on his reputation.

“In the heat of anger, I put up a comment [on FreeDominion] immediately and I wanted action pronto”.  The comment posted by “Dr Dawg” was posted using a second pseudonym he had called “Ms Mew”. With the “Ms Mew” account he posted that the Taliban comment was defamatory and “I hope Baglow sues the pants off you” (or something to that effect).

He did not make the posting his regular pseudonym “Dr Dawg” because “people would just cruise by it”, so instead he used a second alias, “Ms Mew”.

Dr Dawg” used the alias “Ms Mew” to post on at least four occasions, all within a few hour timeframe.  The first posting he mentions that “I hope Baglow sues the pants off you … for posting that information about the Taliban”.  In the second posting, he was “trying to send a message” to the operators of FreeDominion.  In the third posting he is arguing with “Peter O’Donnell” and says “I’ve posted here before”.  And in the fourth posting, “Ms Mew” answers a question by “Peter O’Donnell” which asks “Tell us who you are?” and “Dr Dawg” posting as “Ms Mew” replies “Why don’t you do the same thing Roger Smith”.  (where he used the real name of “Peter O’Donnell” … Roger Smith)
[The above exchange of “Ms Mew” was a bit hard to follow as an observer, because most of it was just reading parts of what was in the evidence binders and of course I don’t have any of the binders to read along and follow all the testimony]

Sometime after the first posting on FreeDominion by “Ms Mew”, John Baglow sent an email to Connie Fournier, one of the owners of FreeDominion, about the purported defamatory comment posted by “Peter O’Donnell”.  Connie wrote a post on FreeDominion on August 12, 2010 and made some comments about “Ms Mew” actually being “Dr Dawg”.

At this point Peter Burnet, asked for the courts permission to interrupt the testimony of “Dr Dawg” and call their “IT guy” James Bow to the witness stand.  Since Bow is from Kitchener, they wanted to get his testimony over, so that he could return home.  The parties and the court agreed.  So “Dr Dawg” was asked to leave the court room and to not hear any of the evidence Bow was to give.

Peter Burnet then called James Edward Bow to the stand.  He is a 41 year old “self-taught” web designer who lives in Kitchener.  He has a BA in Environmental Studies and has some knowledge of web design and databases. Bow has appeared at times as a co-blogger on Dawgs Blawg and he has administrator access to the website.  Frequently through-out Bow’s testimony he referred to the plaintiff John baglow as “Dr Dawg”.

Bow first met “Dr Dawg” “though the blogosphere”, where he “read the Dawgs Blawg website and took part in some of the discussions”.  In terms of politics, Bow says that “I consider myself to be a centrist”. Bow runs a web design business and is a freelance writer. 

Bow contacted “Dr Dawg” in 2010 to “encourage him to upgrade his website” and “use his server”. “Dr Dawg” used “old software for his website and comments”, which included Holoscan and Echo. Bow “volunteered to help move the comments and website to his server”.  At some point Bow was paid his “standard published rate” for web design work.

The rest of Bows testimony was about trying to move the comments from the old Dawgs Blawg to the new Dawgs Blawg on his server.  He had “tried various means, but it was beyond my skills” to get the old comments working on the new website.

Cross-examination was handled by Connie Fournier the owner of FreeDominion, and who is representing herself at the trial.  She had a nice demeanor during her cross-examination and questioned James Bow like she was a seasoned lawyer, moving from exhibit to exhibit asking pointed and directed questions. 

The rest of the day was taken up with a very detailed discussion about the comment section of Dawgs Blawg website and the apparent failure of moving the old comments over.  This has become an issue in the case because the defence has made allegations about evidence spoliation.  Based on my understanding of the allegations, it is that the comment sections on Dawgs Blawg (old site) were removed while the defence was trying to investigate the context of some postings.  And when the defence lawyer – Barbara Kulaszka – asked for the comments, they were allegedly altered or deleted and/or not disclosed or disclosed in a way which rendered them almost unreadable.

I have some quickly scribbled notes on the entire exchange on this, but I honestly think that this issue is very complex and confusing, since it involved three or four different comment providers, multiple websites and a whole ton of different things.  I could write a short book on the back and forth exchanges.  But I also might get many of the points incorrect, as all the cross-examination by Connie Fournier was reading various posts, XML file extracts and other things in the evidence binder.  And since I could not see what they were discussing, I only got part of what was really happening.  

My main observation of the two hour cross-examination of Bow is that the cross-examination was highly technical in nature and involved not just blogs, but the comment software used to facilitate conversations underneath each blog posting.   This is really worrisome, since the judge is a complete “clean slate” with little experience on the internet and doesn’t seem like she has a firm grasp on computers, and all the techno-babble surrounding it.  Terms were used frequently like:  server, comment server, IP address, external comment server, comment threads, comment thread links to posts, XML files, text files, mark-up languages, database tables, comma separated values, Site Meter, Movable Type, Disqus, Blogger, Blogspot, etc etc etc.  

One thing that would have made the whole process a lot better for the judge would be a large white board, and all the servers, and the timeline of when comments were on what server could be sketched out.  It would have made understanding the evidence so much easier to follow along with and easier to digest for the judge.

The other observation I had was; that it appeared like Connie Fournier did succeed in getting a few points clarified.   James Bow put in an affidavit earlier in the case in response to a motion the defence filed to have lawyer Burnet removed from the case (I am not sure of the specific allegations against Burnet and it was not made clear during the testimony today).  I would assume that the motion failed, since Burnet is still on the case, but Connie did cross-examine Bow on this affidavit. In the end, Bow did state that in one section (and this is me paraphrasing his answer) “I might have misremembered for this affidavit”.  Which was a reference to the comments section on Dawgs old Blawg.

The hearing continues tomorrow at 9:30am, with the completion of “Dr Dawgs” examination by his lawyer and then cross-examination by the defendants will start.  At the end of the day the judge seemed a bit upset over the scheduling of this case.  Originally it was only set for 3 days, now it appears that it may well last at least two weeks!  The trial will go to Friday, then break and come back at some point in the future, possibly around the summer, for another week of hearings.


(All the comments above 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 [dot] com for corrections)