This should be interesting
One of the most basic defenses against a libel action is the ability to prove that what you have said is true.
In his libel notice letter Lucy Warman’s (and the liar Kinsella’s) lawyer spends a good deal of time suggesting that Lucy never wrote anything about Sen. Cools and that anyone who suggested such a thing was defaming Lucy.
Up until now Lucy has been pretty confident no one could prove he wrote the impugned comments because, it emerged at yet another of the hearings surrounding Warman, that the Rogers records for the period in question could not be produced because they had been lost/destroyed/routinely erased.
According to a poster at FD who apparently spoke to Mark LeMire here is the Warman take on the absence of records,
The main testimony in the Marc Lemire hearing took 20 days to complete. Richard Warman attended every day up to Day 8, the day the Lemire team was to present the Rogers evidence. At this time Richard Warman did not know that the records for the timeframe were missing.At some point on Day 8 Lemire’s lawyer presented the tribunal with copies of the result of the Rogers subpoena. While they were being passed around and read the proceedings continued on to another matter. Marc Lemire chose to watch Richard Warman while he read the findings. When Warman got to the part where he learned there were no records his face lit up and (according to Lemire) he said in an elated and relieved voice, “There are no records!” free dominion
Now, just for fun, can you think of any way of establishing that Warman did in fact use the IP from which the nasty screed on Anne Cools would have been posted? For example, is it possible that Lucy sent some emails from that IP on the days in question? And is it possible that he might have used such emails as evidence in other proceedings?
Now, if, through other means, Lucy can be proven to have been at the relevant IP at the relevant date is the libel notice entirely true?
Update: As it happens Mike Brock has found just such an email...which he helpfully annotates.
All “Lucy” had to do was request Rogers write a letter stating what his IP address during the period under suspicion then with that letter (proving the ISP adresses are different from the slander post) sue a new orifice in his detractors.
...but he hasn’t and he spends more time trying to avoid having the damning circumstantial evidence suppressed (which points to his guilt in the cools smear post), than he does simply clearing the matter up by having his ISP provide the needed proof of his innocence.
The evidence points to his guilt as being (Out of 32 million people in Canada we know that 1 out of a possible 341 wrote that message and only one of them has a documented, admitted history of planting hateful posts under a pseudonym on that site)...Plus, his avoidance of pursuing clearing up any liability with his ISP is also very suspicious and leads one to conclude he is guilty.
Stating that Lucy slagged Senator Cools with the documented evidence available, is fair comment and also a factual defense bearing the reasonable probability of being the truth.
Actually I’d be cautious about saying that, WLMR. I have no idea how Freedomsite’s server logs were handled prior to them being submitted as evidence. If the site is being hosted by a disinterested third party and they submit the logs, having had no motivation to tamper with them, then they might be accepted as evidence in a court.
However, if the server were in the sysadmin’s basement and then, after a few years of messy fights in a HRC tribunal the guy produces logs off of his own server trying to show that it was Lucy who posted the most offensive message they may not be accepted, since the sysadmin would have had both the ability and motivation to tamper with them.
By no means am I suggesting anyone did tamper with them, but to be used as evidence in court you generally have to handle server logs in a very secure fashion – something people who administer their own web sites have no reason to do.
So those logs might be enough to persuade you and me that Lucy was at work that day, but it just might not be strong enough evidence to fight off a defamation suit.
How is it that Rogers “lost” the records? That seems a little too convenient?
I would subpoena Warman’s email accounts to look for IP addresses of mail sent at or around the time of the freedominion postings.
If those are deleted or “missing”, usually the email account has backups to draw from.
Another option would be to poke around other people he is like to have been in contact with around that time…but I kind of doubt you would be able to subpoena someone for it…although it is hard to say.
Another possibility is to find out through a neighbour’s records. Often Rogers will have similar IP addresses within a neighbourhood. It won’t give you a match, but it can limit the possibilities. I don’t know how you would get the information, however, except through Rogers or a willing neighbour who gives you some email headers.
That is my 2 cents.
As I’ve said elsewhere the problem with a case like this making it to court is that it will likely be resided over by a someone whose VCR is still flashing “12:00”...
From what I have seen from the rulings of most judges these days in matters involving the internet, most of them can barely work their remote controls…
I’m shocked! Shocked! About which aspect of this bizarre case I am unsure, where to begin, where to begin…..
Kevin, I agree with you as to the server records. That said, Lucy is named Lucy because he admitted to posting as Lucy from that IP addy. And he moved Heaven and Earth to have the Roger’s records suppressed before he found out they had been “lost”.
UAlaw, I think you are on the right track. On place to look would the the CHRC itself.
Plus, and this is just speculative, my sense is that Warman has made more than a few enemies in his day. It is always interesting to see what comes up from ex-friends.
James, you are right; on the other hand there are some technically pretty sophisticated judges. The real question is whether Warman pleads this intelligently.
Exactly, if this was a lie he would be suing, he is not and unless there is some weird plot twist, I cannot think of one reason why he would want it known unless Kinsella was at his house doing the typing.
Who wouldn’t want their innocence proven?
Jay: yes, you are right, I didn’t mean to slam all judges. But I think that just demographically, if you get a judge in his or her late 50s or in the 60s, the chances of getting a net-savvy judge go down quite a bit.
Which brings up a point I’ve been thinking about for years: wouldn’t it make sense to have a least some part of the court system specifically aimed at computer-derived crime?
One could always send a couple copies of samples of Warmans writings under his own name and then take the Cools post and have an expert do a “Forensic Audit” on writing style and tecneque. I believe this is accepted science these days, we all have a unique way of expressing ourselves.
For those that eluded that FD could of altered the records I pose this question, how could they possibly know what Warman’s personal IP address was when he filed his HR complaint? They would of needed that IP addy to tamper with the records. Sorry but that’s not possible or probable.
He has admited he has posted on internet forums using monikers, why would I not believe he wrote the Cools posts? We have no way of knowing how many forums he may of posted hate filled posts. We can find out if this Libel suit moves forward, how many forums have Warman and HRC employees such as Darcy set traps in? How many people have been persecuted under entrapment? These are serious issues for me, a police officer would lose his job if he acted in such a manner yet the HRC awarded Mr. Warman damages for setting people up?
Why people defend his actions is unbelievable to me, this is suppose to be a free country where one is innocent unless proven other wise by a Jury of our peers. Yet the HRC can find me in violation of Section 13 without a modicum of evidence and what evidence they have gathered ( which could be a planted post using entrapment) against me they can deny me access to this evidence under another section. Excuse me but this is beyond entrapment, they can be complainant, investigator and judge and then fine me and order my voice mute. ON planted evidence by their employees, for Gawds sake the entire country should be screaming in rage.
The standard way of discussing specific issues which the average citizen or judge knows little about is to have the matter addressed by competing expert witnesses for both sides. Very few judges have any real medical knowledge, for example, which is why doctors routinely give their opinions in personal injury cases. The same is true for anything beyond the most basic computer issues.