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: http://canlii.ca/t/fmvmp]

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

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

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

The parties at the hearing were:

Plaintiff: (person who brought the defamation action)
·         “Dr Dawg” (a.k.a John Baglow)
·         Peter Burnet, lawyer

Defendants: (defending the defamation action)
·         “Peter O’Donnell” (a.k.a Roger Smith) – Self-represented
·         Connie Fournier (self-represented)
·         Mark Fournier (represented by Barbara Kulaszka)
·         Barbara Kulaszka, lawyer

Interested Parties:  (These are ‘friends of the court’ who make submissions to assist the judge in coming to her decision, based on the organizations they represent)
·         Mr. Frankel, lawyer (Representing the Canadian Civil Liberties Association, who support freedom of expression)

The day started off around 10:15am, with a series of ‘housekeeping’ matters.  Discussions on the timing of the case; some back and forth about various minutia of the case; and a brief introduction to the participants of who the judge is.  The Madame Justice’s opening remarks were quite surprising.  She said that she has “never been on a blog before.  Never uses the internet, except for a bit of email and doesn’t use twitter or facebook”.  The judge summed it up as “I’m a clean slate when it comes to the internet”.

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

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

Even if “Dr Dawg” is right and it is defamatory to say what “Peter O’Donnell” said, to have this important fundamental question of online political discourse decided by a Judge who has “never been on a blog” is a pretty scary thought and unfair to BOTH parties, who have battled it out in the legal trenches waiting for this day to decide this important and novel question of law.  In my mind, this is yet another reason why Ontario’s defamation law needs to be repealed in its 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) lemire.com for corrections)

Trial – Day 1:

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

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

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

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

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

Roger Smith summed up his views on the trial in 6 concise words “this entire process is a travesty!”  When the judge asked about his posting, Mr. Smith answered “political opinions should not be adjudicated in courts”

After lunch was the lawyer representing the Canadian Civil Liberties Association, Mr. Frankel.  While the CCLA was not originally granted an opening statement, the judge offered Mr. Frankel the opportunity to state the CCLA’s position on the larger societal issues of this case.  Mr. Frankel made it clear from the outset that the CCLA takes no position on the facts of this specific case, but rather intervened in this case because of the broader public interest with respect to freedom of expression.  The CCLA wants to see defamation law “develop in accordance with the Charters protections for freedom of expression in mind.”

The CCLA’s position has 5 pillars:

  1. Heated political debate on the internet should be factored into the test of a “reasonable person” with respect to the context of the overall debate
  2. Context of the meaning of the words is critical.
  3. Administrators and blog operators should not be held to a strict liability test under defamation law.  And that by holding message board operators (such as Mark and Connie Fournier) to a strict liability test it has a chilling effect on freedom of expression.
  4. The broader context needs to be looked at for statements of facts vs opinion.  And that comments should be looked at in a contextual fashion if they are facts or opinions
  5. An adequate factual foundation needs to be established in accordance with overall context of the posting.  The court should not adjudicate in vacuum.   And the court should “not be restricted to the four corners of the case”.

 That was the end of the opening statements by the parties.

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

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

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