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:


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When the blogosphere went to battle over the now repealed Section 13 of the Canadian Human Rights Act, (Canada’s internet censorship legislation) one of the strongest arguments the side supporting freedom of speech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: , and my report of the second day here:
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 ( and the new blog was on a Movable Type platform. ( 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)

Day 2 of the Baglow v. Smith & Fourniers Defamation Hearing: Baglow testifies and hearing delayed due to medical problems

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:

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. :)

Day 2 – “Dr Dawg” Testifies – In-Chief.

The day started off with Peter Burnet calling his witness to the stand “Dr. Dawg”.

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 Dawgs 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 @

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”.

(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)

Tuesday, March 25, 2014

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.

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:]

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:]

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 entiretybut 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) 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.