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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16 thoughts on “Law Marches On

  1. […] UPDATE:  Here is what Jay Currie has to say about this ruling. […]

  2. xanthippa says:

    While estill reading through the ruling, I am sorry to say that Madam Justice Polowin failed to understand both the substance and the importance of the despoliation charges. I suppose it was too much for a self-described ‘Luddite’ to grasp these issues and the impact of this ruling.

    Still, it is unfortunate that this will form a legal precedent.

    I’ll have more to say when I’ve read more of the decision…and, perhaps, if I am comforted by what I read, I will dare to post the rest of my account of the trial.

    • Jay Currie says:

      That is a complicated issue X. And I am not at all sure it will stand as precedent as it is primarily a question of fact.

      I am looking forward to a good long read but the key point is that fair comment was considered and applied. I think that may be pretty important here.

      Looking forward to your remaining write ups.

      • xanthippa says:

        I’ve had Connie’s closing arguments ready for many months…but, I was waiting for the ruling to see into how much of a detail I dare to go.

        Now, I will go edit it it some and will post it ‘shortly’.

    • Doesn’t the Libel and Slander Act protect you in terms of bare reporting on the proceedings (as long as you don’t include opinion/comment)? Not sure if the reports have to be more or less contemporaneous with the proceedings or can be published this far removed from them.

  3. Maikeru says:

    The Baglow v Smith Decision, having found its way into Canadian legal history, confirms that Baglow lacked/s a clear understanding of ‘fair comment’ online.
    A sensible lesson from this whole charade is to ignore John Baglow’s internet comments and commentaries going forward.

    Having taken this thing to Trial, when it was accurately decided by earlier Summary Judgment, one wouldn’t be at all surprised if Baglow triples down on stupid by Appeal.

    FreeDominion hosts Connie and Mark Fournier have proven themselves to be the most remarkable duo in Canada when it comes to defending the right of members to post their personal opinions online.

    They’re right up there with Levant and Steyn for fighting back against lawfare – from fielding Sec.13 Complaint to sordid ‘defamation’ suits.

    For those who’ve given financial suport to the Fournier’s of FreeDominion, in their trials and tribulations (to date), it’s been money very well spent.

  4. Terry Rudden says:

    “The Baglow v Smith Decision, having found its way into Canadian legal history, confirms that Baglow lacked/s a clear understanding of ‘fair comment’ online.”

    It’s more accurate to say that Baglow and Smith have jointly forced a clarification of the ever-shifting gray border that separates established from emerging law on internet practices.

    I too look forward to a long read.

    • Terry, and it IS a long read. I’ve been through it once. My first impression is that the court said there is nothing fundamentally different about internet speech. It seems that the ruling turned on the facts (as is typical for defamation cases) with the key finding being no malice-had there been a finding of malice, fair comment wouldn’t have saved the defendants. Future litigants will want to think long and hard before they bring a claim or choose not to take something down with the consequence that they will need to defend a claim.

    • markymarkincanada says:

      As a P.S., here is what may indeed have been clarified. 1. The comment in question won’t necessarily be looked at in isolation and the context may well include comments made elsewhere online as if part of a multi-site discussion. 2. The prior speech of the person complaining may he relevant in assessing the claim including whether the standard for malice has been met-see the end of the judgment.

      I look forward to more scholarly commentary in the weeks and months ahead.

      For those who wanted this court to rewrite the defanation laws, then is something best taken up with our elected representatives.

  5. markymarkincanada says:

    Did you get my initial comment that was a reply to Terry? Only the second P.S. comment appears. (Feel free not to post this one if the other is now there.)

  6. Jason Bertucci says:

    Interesting that a person who makes a living blogging and writing articles has such animosity towards freedom of expression. Freedom for me and not for thee?

  7. xanthippa says:

    Upon a closer reading of the full verdict, this does not seem to be the victory it looked like at first glance.

    In particular, the Fourniers and Peter O’Donnel have to cover their own costs and a part of the cost of the ‘court expert’.

    This will have cost tens of thousands, if not into the hundreds of thousands dollars to defend up to this point.

    Yet, even though there is a finding of ‘fair comment’, the defendants will have to bear this incredibly high cost of their defense.

    The process has indeed become the punishment and I would be surprised if well-off individuals will not attempt to use this precedent to silence their less wealthy critics, either through bankruptcy or because after multiple lawsuits, they will lack the means to defend themselves.

    • peterodonnell says:

      If one includes all related cases, then yes, the financial burdens are considerable. We do have the support of a large and determined group of people who have helped us to defend several different cases — my own exposure is rather moderate when compared to the Fourniers who are perhaps the finest and the bravest people I have met in my lifetime. They are certainly an inspiration to many of us. I think it is fairly widely known that they endure some rather challenging circumstances to keep their boats afloat. Contact me or them off forum if you feel that you need to know more, I am disturbed to say that I don’t entirely trust the results of stating even the most innocent facts about lawfare defendants in the public realm.

  8. peterodonnell says:

    Hi, you may know me from such movies as Mr Smith goes to Ottawa …

    No further comment. Just a vast sigh (of relief? maybe).

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