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When the blogosphere went to battle over the now repealed Section 13 of the Canadian Human Rights Act, (Canada’s internet censorship legislation) one of the strongest arguments the side supporting freedom of speech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)