Monthly Archives: February 2015

Context Matters

I’ve reread the Baglow v Smith et al decision. Dawg and friends seem to want to think Polowin, J. simply applied existing defamation law. I think she went further than that and I commented at Dawg’s blog as follows, (minor edits for intelligibility):

. I would read paragraphs 230-234 again Dawg.

My sense is that this is where the flat out statement of “fact” is transmuted by context into “fair comment”. It is an important point as it means that where a blog or board is primarily a place in which opinions are vented there arises the presumption that something posted to that board is more than likely to be opinion and therefore comment as well.

In a sense it is a legal recognition that the editorial pages are held to a different standard than the news pages and that material clearly labelled opinion is less likely to fail to be saved by a defence of “fair comment”.

This is why I expect this decision is important and probably not just online. The judge’s consideration and extension of WIC has, happily in my view, clarified where fair comment ends and real defamation begins. And her reasons make nearly explicit a view that editorial or opinion speech is significantly protected by the context of its utterance.

(I am going to gallop over to my little blog and put up the words “strictly editorial” … I will leave it to my lefty friends to read in “entirely fact free”.)

Unfortunately, this is implicit in the decision. For various reasons judges who extend the law often do it by implication rather than coming right out and saying it. However, the next case will push the implication further.

Context matters. And context is both the speech itself and the forum in which it is uttered. A political commentary board is all about opinion. Polowin has, implicitly, created a legal presumption that speech inside such a board is to be regarded as comment rather than fact. Even when the bare meaning of the words looks like an assertion of fact.

I think this is significant as it creates a new means of analyzing speech for purposes of defamation law. As a result of Baglow a new question arises in the fair comment defence, where were the words spoken and would a reasonable person take that forum as an editorial/comment based environment or would they assume that the words spoken there should be regarded as fact?

It is a hook upon which a good deal of pretty hard hitting commentary can be hung. When context matters the mere words are not enough to survive the fair comment tests. And, interestingly, the intention of the author may not matter much. If you post to a site which is devoted to political commentary, even if you assert as fact something which is found to be defamatory on its face, your choice of forum may well protect your words.

Cautiously, Polowin, J. may have made a key distinction. She may, by implication, have brought the “brass rail rule” to Internet political commentary in Canada. She may have said that if you are standing in a metaphorical bar, you foot firmly on the brass rail, if you call someone a Damned liar, defamatory as those words may be, you are shielded by the environment in which you’ve said the words.

Baglow seems to stand for the proposition that what you say matters and where you say it matters too.

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Law Marches On

Madame Justice Heidi Polowin has rendered her decision in Baglow v. Smith et al (Free Dominion) .

It is a long, closely argued, decision – 62 pages – ending in a win for Free Dominion on fair comment grounds. I suspect it will join Grant as one of the critical decisions advancing Canadian defamation law into the post Charter, internet age.

I want to read it at leisure but two things are striking: first, the judge has decided that each side shall bear its own costs – which mean Connie and Mark still need your donations. Second, and I have not seen this in a decision that I can recall, Polowin, J. ends her judgement with these words:

“Finally, I thank all involved for their assistance and thoughtful submissions.”

Connie, Mark, Roger Smith and Dr. Dawg should never have let this matter get to Court. But it did and as a result, and at great cost to all of the parties, we now have a roadmap for online conduct. The defence of fair comment has been slightly extended and the question of “context” driving the meaning of particular words considered.

I am delighted that Free Dominion won and the win was well deserved. But it was a damned close run thing.

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Heart of Stone

Awful fire in the very strange city of Dubai.

Aptley  named Marina Torch. 


The Divide

Justin Trudeau

Canadian, eh?

“Canada’s diversity is our great and unique strength,” Trudeau said in an interview with The Canadian Press.

“We are the one country in the world that has figured out how to be strong, not in spite of our differences but because of them. So, the prime minister of this country has a responsibility to bring people together in this country, not to divide us by pandering to some people’s fears.”

Harper’s approach “frays away the edges of our multicultural fabric … (by) stoking and pandering to fears rather than allaying them,” he added.
What’s more, “it’s unworthy of someone who is prime minister for all Canadians.” justin trudeau

Trudeau is reflecting a view that somehow Canadians who oppose special treatment for Muslims are afraid of Muslims.

The alternative view is that Canada should treat all of its citizens equally and pander to none.

By making unnecessary – the veil is not a religious requirement of Islam – accommodation for particular classes of citizens and potential citizens we are creating the conditions in which there may well, in time, be something to fear as there is in France, England, Denmark, Holland, Germany and many other European nations.

Refusing to allow a Muslim woman to take her citizenship oath wearing a political statement is making it easy for a political cult to infest Canada. There are many Canadians who are uneasy with the demands political Islam makes. Excluding a woman who refuses to unveil will make Canada seem a bit hostile to political and cultural Islam. Good. Let people who want veiled women and sharia law go somewhere else. Canada neither needs nor wants them.

Trudeau thinks we have figured out how to be strong in spite of differences. We have; but none of the differences which prior groups of immigrants have brought to Canada include explicit political loyalty to a supremacist cult. The veil is an explicitly political act and, frankly, a direct insult to the nation the veiled woman and her family wish to emigrate to.

The divide in Canada is between those of us who see Islam as an overtly expansionist political organization with a thin veneer of religion and those, like Trudeau, who deny the express teachings of the Koran, the Wahabbi supremacy and the anti-asimilationist rhetoric that is modern Islam. Trudeau seems to be under the impression that there is nothing to fear, nothing to reject in Islam. He is wrong and by attacking Harper for recognizing the profound political importance of the veil, he is demonstrating just how unfit he is for office.

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President Dumb

So Obama will not share information with the Egyptians bombing ISIS.

And, apparently, he was not willing to share information with Jordan either.

The dimwit holds a conference on “violent extremism” and avoids mentioning Islam.

Now there are righties who suggest that Obama is a Muslim, or that he has been captured by the Muslim Brotherhood; I don’t think so.

What I do think is that Obama, and his gang of soft power advisers, are in so far over their heads that they have not a clue what to do. What they are certain of is that “War is bad” and so they are trying to avoid war by being extra nice. I can’t help but think that death from laughter is taking its toll in ISIS.

There are a lot of things which America can and should be doing to deal with ISIS. One of those things is to provide a lot of material and intelligence support for the people willing to actually attack the beast. This, apparently, has escaped the dimwit in chief.

Counting the days until his term is over may be a luxury America cannot afford. Impeachment – for a variety of offences – may be the only solution. The only problem being that Obama gone means Joe Biden. Not a good choice but, perhaps, better than the present idiot.

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Rebel, Rebel…

Ezra rides again.

Now here’s the thing. Ez has published a magazine and put on a nightly TV show. He apparently has some backing. He has name recognition.

The question is whether he has taken the proper lessons from the fact that neither of these two operations were successful? A good rant once in a while in the style of Rex Murphy is grand;but there needs to a lot more than that.

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Sun TV is dead

Word arrives of Sun TV’s demise.

I don’t watch TV so this is an abstract blow. I watched enough of Sun to know that I didn’t like it any more than I liked the Sun newspapers. It was certainly a dissident voice in the wasteland of Canadian television. But it missed Marshall Mcluhan’s point about television being a cool media. Worse, it lacked the vision which has driven Fox to the top of the cable heap.

Television is dying. Viewership is dropping, ad revenues are down. It’s dying because no one has time and no one wants to be talked at. Talked with, perhaps. My phone offers me a thousand and eleven news sources, raw video of events:the opinions I can develop myself.

Sun’s critical mistake – other than having the production values of community TV, was to miss how mainstream, lefty, media works. The opinion is embedded not overt.

I love Ezra and Brian Lilley. For five minutes at a time max. Which leaves 23 hours and change to do serious reporting, regional coverage, round tables, celebrity bs, culture, media, books and call ins. Plus serious business reporting when the market is open.

None of that happened. Or,if it did, no one knew about it.

Taking several million dollars and running a conservative flag up a pole is a worthy endeavour. Everyone at Sun deserves a heartfelt pat on the back. But the reality is that marketplaces decide what works and Sun TV never did.

It is encouraging that BCF noted that Ezra was sitting with Moses Znaimer at the Mark Steyn event. Znaimer is the smartest guy in Canadian television bar none.

Sun TV was an attempt to change the channel. It failed. The need remains but it has to be smart, slickly produced and Internet aware. Sun TV, whatever its ideological virtue, was ham handed, as slick as Brian’s do, and Internet poison. These are people from the dying newspaper business trying to revive the dying television business and it showed.

The market is never wrong… On to the next thing.

UPDATE:Lots of smart commentary floating around the Canadian net. Thanks to Blazingcatfur, Five Feet and Mark Steyn for linking.

Creating conservative media one needs to keep a couple of things in mind. Toronto is not Canada. No, really. The Internet is here to stay and it has changed everything. Real news leads, opinion follows. Conservatives are busy people. They will watch smartly packaged news and business reporting. The success of BNN demonstrates this. Television is dying so don’t be television…look to VICE as a model. Fixed costs are your enemy, freelancers your friend. There is a lot of underutilised studio space all over Canada. Slick production is about style, the 70’s are over. Technology let’s you shoot studio quality on a DSLR and edit on your phone. Use it or find someone who can.

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David Carr is Dead

He had a grand, sad, life.

Well worth reading.


ISIS lives there.

Time to stop screwing about and level the place.

Collateral damage… A bonus.

Send in several waves of B1s and have done with it.

Where ever ISIS stands hit it.  It will not win the war.  It will suggest that we are serious about winning.


Bill C 51 seems to be a relatively well thought through approach to the problem of combating terrorism in a free and democratic society. It will, likely, pass muster at the SCC and will allow CSIS to get up the noses of people who support terror. All good things.

But, and it is always a concern, government has a nasty tendency to take the powers it’s given and apply them in ways never within the contemplation of the legislation.

For example, the intention to disrupt a meeting of the G-20 whether in Canada or abroad, if there is even a hint of the physical could trigger the provisions of the bill. I might think G-20 protestors are dweebs but I think there is room for robust protest in the political sphere.

What happens if the Jewish Defense League decides to protest a speaker at Palestine House in Toronto. Or to counter march against the Musoloons the next time Hamas or Hezbollah attacks Israel? And what happens if I or BlazingCatFur put up a link to the protest or counter march?

Mark Steyn is worried.

And so he should be. At this point we are dealing with a Conservative government which has been pretty clear eyed about where the terrorist trouble is coming from.

“It doesn’t matter what the age of the person is, or whether they’re in a basement, or whether they’re in a mosque or somewhere else,” Harper said Friday in Richmond Hill, Ont. cbc

But what if the very dim Liberals are elected and have access to this same set of tools. It is not difficult to imagine that they would loose the dogs of CSIS on people engaged in Islamophobia (or what we call around here, clear thinking) or any other activity which does not contribute to Kumbaya Nation.

So C 51 needs one, large, effective block to its misuse: but what should that block be? The problem with security courts and the like is that they operate, of necessity, in secret. Is there a better way?

There might be. It seems to me that what we are really looking for is accountability and that can be created by using a degree of required, public, disclosure albeit after the fact. Basically, the security services could be required, in order to use the provisions of the new legislation, to file operational plans, including budgets, with specified goals and named targets. These plans would be filed by named agents and managers. (Names could be withheld from the public but would be available to Parliament in the second phase of the oversight.)

At the conclusion of the operation or at the expiration of three years, (extensions available if the government of the day applies to the Chief Justice), these operational plans (with redactions only to conceal the names of active agents), would be made publicly available and subject to a hearing of an all party Commons Committee for a value of service/common sense audit. The outcome of the operation would be disclosed as well. The committee would be charged with grading the operation and would have three grades available to it: commendation, pass, and fail. A finding of fail would mean that every agent and manager associated with the plan would summarily be fired and would not be eligible for further government service for their lifetimes.

Should concentrate the minds of our security people wonderfully.

Update: Welcome Free Speech Warriors from Blazing Catfur, Five Feet of Fury and Mark Steyn…

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