🚀 go-pugleaf

[DISCLAIMER:  nothing within these posts should be taken as condoning or
approving the filing of libel suits for any reason - TtT]


CANADA                                                  SUPERIOR COURT
Province of Quebec                                      --------------
District of Montreal
No. 500-05-015133-935
                                                        V.I. Fabrikant
                                                                Plaintiff
                                                - vs -
                                                        C. Adolph et. al.
                                                                Defendants

        PLAINTIFF'S ARGUMENT TO CONTEST DEFENDANTS' MOTION TO DISMISS

Presentation of written argument should not be understood as  my
relinquishing
of the right to be present during the adjudication: I still want to be 
present, but since I am in jail, I can only be present if a court orders
so.   
I request that such an order be made.

1. The Defendants filed their Motion to dismiss my action, arguing that 
libel 
lawsuits are designed to protect reputation of an individual in a
community, 
and that my reputation in the community is so low that there is nothing
to 
protect.  What they are not saying is that it is the Defendants who
ruined my 
reputation by their outrageous lies about me and my past.   Here is just
one
example proving the point.  This is what was written by someone from the
University of Waterloo (the complete text of his E-mail is reproduced in
Exhibit 1):

    After the publication of "The Fabrikant Files" I cannot see how 
    anybody could still give Fabrikant the benefit of the doubt.    
    Am I correct to assume that some of the people defending him    
    haven't read said files? (published by the Montreal newspaper   
    Gazette). 

    Alex 

I have sufficient proof showing the change of mind of various seemingly
intelligent people.  Even those, who understood various obvious
shortcomings
of the "Fabrikant Files", and still convinced that I was abused, even they
came to a conclusion that I must be a nasty man.  Had The Gazette
reported the
fact, for example, that a number of students voluntarily came to testify
at my
trial, and they testified that I was one of the best teachers they ever
had,
and one of the very few people who really cared for the students, then, I
am
sure, nobody would think that I was a nasty man.

2. Take, for example, the Latimer case.  Here are the plain facts.  A
father 
takes his handicapped child, places her into a truck, connects the
exhaust 
pipe into the cabin and starts the engine.  He watches his child to die,
then 
he lies to the police that his daughter died in her sleep.  Only after
the 
medical investigation showed the poisoning, he confessed as to what he
did.  
After that he was convicted by the jury of murder.     The facts are not
disputed.  The public perception of these facts depends on the reasons
for his
actions.

Assume now that The  Gazette publishes 
an article about him entitled "Latimer Files", in which it 
would claim to make an inquiry and discover that Latimer was a violent
and 
troubled man all his life, that he abused and discarded his wife for
giving 
birth to a handicapped child, that he threatened neighbours and often
flew 
into violent rages with them, that the only reason he killed his daughter
was 
that  he decided that she took too much of their time for her care, and
that 
he wanted to save money which caring for his handicapped daughter cost
him.  
In addition they would write that though he was a farmer all his life, he
knew 
nothing about farming and was dishonest in his business dealings.  Assume
now 
that Mr. Latimer, after reading all these lies, would decide to sue them
for 
libel, and they would file a Motion to dismiss arguing that he had
committed a 
heinous crime that his reputation in the community is so low that he can
not 
possibly win this case.   Would the justice be served if a judge would
dismiss
 the imagined Latimer's lawsuit?  Obviously, not.

This is how the same "Alex" reproduces the most essential parts of
"Fabrikant
Files "
  4  
The Fabrikant File. Special Report.
The Gazette. Saturday, August 14, 1993
[...]

Those four killings weren't the first sign that Fabrikant was a troubled
and violent man. They were the culmination of a long history of aggression
and manipulation that dated back to Fabrikant's early days in the Soviet
Union.
[...]
This is the story of Valery Fabrikant:
[...]
Our investigation shows that Fabrikant reluctantly left the Soviet Union
after being fired from at least three job because he abused his fellow
workers, threatened them and frequently flew into violent rages. He came
to
Canada not because he was a dissident or a refusenik, as he claimed,
but because he couldn't get a job.
[...]
The investigation also reveals that once he arrived in Canada: 

- He falsified his curriculum vitae by altering the field of his
PhD degree and other titles to try to get hired full time at Concordia.

- He fraudulently bumped up his student marks and [bumped down other
professor's students marks].

[...]

- He had no evidence for the accusations of fraud an extortion he made    
against fellow professors.
[...]
This investigation also raises serious questions about the Concordia
administration's conduct in the handling of Fabrikant throughout his
12 years at the University. How could a person who was abusive, rude
and threatening as Valery Fabrikant find a home at Concordia for so
many years? Was the university so tied up in rules and regulations
that it was unable to take action against him?

Fabrikant was on the Faculty of Mechanical Engineering. But he knew
almost nothing about mechanical engineering. 
    5
Compare it with the imagined description of "Latimer Files" given above.

3. The analogy between my case and Latimer's  is in the fact that in both
cases there is no doubt as to what has been done and who did it, and in
both
cases the public perception is based on the WHY it happened.  Strictly
speaking, what Latimer did was a premeditated murder, rather than a second
degree murder, because he clearly thought it over before started acting.  
The difference between the public perception of me and Latimer lies in the
fact that his actions were explained by the media as a compassionate
killing,
while in my case the truth was never told.   The Gazette in "Fabrikant
Files"
declared that I killed four people because I was about to be exposed as a
false scientist and a fraud.  As ridiculous as this reasoning sounds, the
public seems to have bought this stupidity.  In other media I saw an
equally
stupid explanation why I killed four people: "to attract attention" to my
dispute with the university.   It looks like a very strange way of
attracting
attention, but public seems to have bought this stupidity as well.

4. Assume that the media would have written the truth about me.   Here is
briefly how the truth would read.  
    4
Fabrikant was born in Soviet Union.  He got his Ph.D. in Mechanical 
Engineering at the age of 26 and started teaching at a
university in the city of Rybinsk.   During his lectures, he was telling
his
students to use their brain in assessment of events, rather than believing
communist controlled media.   He was fired as political unreliable, at the
insistence of KGB.   He started working as a computer programmer at a
factory.  
Then he was able to find a teaching position at the university of
Ulianovsk. 
About two years later, he understood, why he was allowed to enter another
university: KGB offered him to become an informant, which he rejected,
after
which he had to run from Ulianovsk to Ivanovo, where he found a work at a
research institute.   But KGB managed to get him fired there as well.  
It was
done by not renewing his contract, though the quality of his work was
excellent.   The firing was illegal, but for a political unreliable th
protection of law does not exist.   So, Fabrikant decided to leave Soviet
Union, to go to the country, where he believed the law was respected and
where the quality of work is appreciated.

He started to work at Concordia University.  As usual, he worked hard.  He
included his bosses as co-authors of his papers, though they did not
understand a word in his scientific work.  At the beginning it did not
bother
Fabrikant, as he felt that his superiors were helping him with
employment, it
would be ingrate not to help them in the field of science.

After 5 years of hard work and over 30 publications in the top journals
around the world, Fabrikant realized that his bosses wanted to keep him
as 
scientific slave  for the rest of his life, blacklisting him everywhere,
so
that Fabrikant could not get 
 any job anywhere, despite excellent teaching evaluations and scientific
publications.   Fabrikant decided to stop including his bosses as
co-authors,
with a predictable result:  when his contract was up, an attempt was made
not
to renew it.    Fabrikant threatens to expose his bosses, and he is left
alone, but not for long.   The extortion continues.  Each time the
contract is
up, the Concordia gang is passing Fabrikant through hell, trying to have
him
terminated.  All this takes a heavy toll.  At 51 Fabrikant had a heart
attack.
  He felt that the gang was murdering him, very legally and
professionally,
and there was nothing he could do about it.

All of a sudden, Fabrikant becomes an invalid, he can hardly walk, his
face 
is grayish-green.  When he comes to work, he sees the whole gang extremely
happy to see his physical suffering.   He underwent an angyoplasty and
recovered.  The brush with death has made him well aware of his
mortality, and
to re-evaluate his priorities.   He decided  to fight all this
corruption, no
matter what.   He goes to the Rector, the Rector does not want to know, he
contacts The Gazette reporter C. Adolph - the corrupt reporter writes a
totally false article against Fabrikant, though she was given all the
facts
supported by documents; Fabrikant goes to the Ministers, to members of the
Parliament, nobody gives a damn.   Fabrikant uses the last resort:
courts, and
he discovers that courts here are as lawless as they were in Russia.  He
knows
why: Chief Justice of Quebec is also Chancellor of Concordia University. 
 He
goes to Internet to cry out for help, nobody cares.

In the mid-July of 1992, Fabrikant distributes a letter on Internet
stating
that Chief Justice of Quebec is  in fact Chief Injustice.   On August 19,
1992, Fabrikant is served a court document stating that he was accused of
contempt of court, the maximum penalty is one year in jail, and the
hearing
was scheduled for August 25, 1992.

Fabrikant was a member of Association which was supposed to protect its
members.  Regretfully, Association President Dr. Hogben was "in bed" with
administration.   He started blackmailing Fabrikant, informing him that
the
hearing in court is fixed that he would be put in jail, and "anything can
happen in jail", which Fabrikant understands as a death threat.  Dr.
Hogben
offers also a "good" alternative: to take $200,000 shut-up money,  and
get out
of the university.  None of these were acceptable to Fabrikant.  He also
tried
in the past lawyers, like Morissette and prominent lawyer Julius Grey,
who only
milked him for money and did nothing.

Imagine the situation.  It is August 24, 1992.  Fabrikant is 52, he has
two
small children (ages 7 and 9), he has a wife who can not provide for the
family, he had a heart attack, which can be repeated due to  the nervous
stress, and tomorrow he might be placed in jail and killed there quietly,
and
then declared that he suffered a fatal heart attack or committed suicide.
 
So, what a normal person in this situation would do?  This is what
Fabrikant
decided: to take guns and ammunition to the university and to threaten
one of
the gang members (Dr. Hogben) to convey to the leaders of the gang to
leave
him alone.  He then was deliberately provoked into shooting.  There is
ample
evidence that  Dr. Hogben was brainwashed into believing that  he can
threaten
Fabrikant, try to provoke, and there was no way Fabrikant would shoot.  
Big
crooks at Concordia used  gullibility of Dr. Hogben to sacrifice him in
order
to save their own skin.   There is no evidence that Fabrikant planned to
kill
anyone, on the contrary, there is solid evidence to the contrary: the
university offered Fabrikant $200,000; should he planned to kill someone,
he
would have taken the money first, and then different people would be
targeted.
5
Had the media informed the public the way I described above, my reputation
would be at least as good as that of Latimer.  Even if I were convicted, a
constitutional amendment would be requested in the same way as it was done
with Latimer.  The problem here is that to tell people the truth would
mean
that the Concordia Administration would have to face criminal charges of,
at
least, criminal negligence causing death, and this is the reason why none
of
the media ever reported the above.

5. Yet another example.  There are several women in federal jails serving
life
sentences  (first degree murder) for killing their abusive partners.  They
were convicted by jury, their appeals were denied.   Some of them served
by
now over 20 years.  All of a sudden, government realized that these women
were
victims of battered woman syndrome.    A special commission was organized
to
study their cases.  Commission recommended acquittal of several of them.

Now, assume for the sake of argument, that  right after one of these
women was
convicted The Gazette had published about her a totally false article
amounting to assassination of character.  Assume that this woman read the
article and decided to sue The Gazette for libel.   The Gazette applied
for
the case to be dismissed on the ground that the woman was a convicted
murderer,
guilty of heinous crime, her appeals were dismissed, her reputation is so
low,
that there is nothing to protect.  Should the case be dismissed?

Assume also that 20 years from now, the government would finally recognize
that not only women can be battered and that battery does not have to be
physical, so that a battered person syndrome would be recognized in legal
practice, and as a result, Fabrikant will be acquitted.  It would be too
late
then to sue The Gazette, since Fabrikant would be dead by that time.

6. And yet one more example.   Take the case of Milgaard. I do not know if
there was  any publication of the kind of "Milgaard Files" at the time of
his
trial, but assume there was, and that it mainly provided a totally false
information about his past life.   Milgaard was convicted of the most
heinous
of all crimes: rape and murder.  His appeals were denied.   Assume that he
sued the newspaper for libel, and the newspaper filed a motion to dismiss.
Should his action be dismissed?  The answer is obvious, since we now know
that
he was innocent, but assume that we do not know, what the general wisdom
would
advice us?

It has  been an established practice in Canadian Law that a civil
litigation
is a process totally separate from criminal one.   It would be a grave
mistake
and injustice to let the media indulge in character assassination of a
person,
who did commit a crime.   Even when a person is rightfully convicted,
say, of
murder, this does not mean that media can lie about him that he was a
rapist
or a child molester or a thief, etc., and the person should be afforded a
legal protection against such malicious actions of the media.   My
lawsuit has
nothing to do with murders: it is falsification of my past and malicious
maligning of my character which are in question here.

7. Some remarks about my standing in the community.   First of all, my
community consists of people, with who I am in constant contact, and this
means inmates.  My standing in this community in general is very high, 
despite of lies written in the media.   Majority of inmates consider me a
hero, who stood up for his rights.  Majority treats me with utmost
respect,
despite numerous attempts of guards to incite someone to have me killed.  
Many of them helped me all these years  with  paper, which I needed for my
research work, with various food items, which I could not afford to buy,
and
with general moral support, without which I could not have survived.

Several events were quite touching.   I mentioned once in conversation
that my
children liked bacon with eggs.  When my family visit date approached,
majority of inmates in the wing  refused to take their portion and gave
it to me
to cook for my children.  And yet another example took place quite
recently: I
was approached by one inmate, who asked me about the date of my next
family
visit.   When I asked, why he needed that, he explained that he wanted to
cook
some special meal for me and my family.  This was very touching.   And
this
comes from people, who society branded as social psychopaths, incapable of
empathy!

All this does not mean that I am safe in jail.  Vast majority might have
highest regard for me, but it takes just one who does not, and I might be
killed any day.   Though I was assured by several inmates that anyone who
tries to harm me would be killed himself, it would be a small consolation
for
me after the fact.   For example, if anyone would believe the media claims
that I have raped a student, I would be dead within 24 hours if this lie
is
believed.

Yet another type of community I am dealing with are the scientists in my
field
and journal editors.   Should they believe The Gazette claims that I have
submitted my articles to several journals simultaneously, they might
refuse to
publish my articles.

9. The Defendants have so little to say that they repeat the same things
over
and over again:  they mention that I killed four professors  in
Paragraphs 4,
5, 15; they say in different words that my reputation is so bad, that
there is
nothing to defend in Paragraphs 12, 13  15, 16  17,  21;  they repeat in
different words that my lawsuit is frivolous in Paragraphs 11, 13, 14, 18.
This is not an oversight: the Defendants have really nothing to say, so
they
repeat the same thing over and over again, hoping that a longer motion
would
be more representative than a short one.

10. Defendants claim in Paragraph 19 that I use the lawsuit "to
relitigate" my
criminal conviction.   This is an absurd on its face: this lawsuit is not
about
murders, it is about my past and about my character which was maligned by
The
Gazette.

As far as the monetary damages is concerned, I would be quite happy with
a $1
(or even one cent) award, provided that The Gazette is ordered by the
court to
publish the truth.  The lawsuit is not about the money but about the
truth and
integrity.

11. The Defendants have not been able to support their motion by a single
piece of jurisprudence and it is not for the lack of trying: there
is nothing in jurisprudence to support their request.

12. The Defendants refer to Art 20, 46, 75.1 and 165(4) as foundation of
their
Motion.  Art 20, 46 and 165(4) are not applicable for a very simple
reason:
the only applicable  article here is 75.1.   But even so, they failed to
apply
it correctly: they have to make an examination on discovery first, which
they did not do.   For this reason alone their Motion should be
dismissed.  
Again, their failure to perform examination on discovery is not an
oversight:
had they done it they would have discovered that I have a very good case
against them.

13. There is no doubt that publication of "Fabrikant Files" was
politically
motivated.  Indeed, the authorities are dead scared that other abused
individuals would take justice in their own hands.   This is why it was so
important for them to discredit me, and any kind of lie goes.

All rules of decent journalism were broken by the Defendants: there is no
interview there with any of my students in Rybinsk or Ulianovsk, no
interview
with my theses supervisor, no interview with my first wife,  no interview
with
any of my students at Concordia, no interview with my brother, no
interview
with the Rectors in Rybinsk or Ulianovsk, etc.   Just for these reasons 
"Fabrikant Files" should have been discarded, instead, the Defendants were
awarded prize for best investigative reporting.  This is impossible to
understand, unless one remembers the political underlining of all this.

I point out some of the falsities of "Fabrikant Files"  in Exhibit 2, as
well
as the false statements from other publications.   In Exhibit 3 I quote
some
parts of the reports written by Cowan and Arthurs, which are in sharp
contradiction of the description of these reports made by different media.

All this will convince the court that I have a very good case to win.

THEREFORE, may it please the court to:

A) DISMISS the motion of the Defendants.

B) DECLARE Defendants' motion to dismiss frivolous and vexatious.

The whole with costs.

Dated at Donnacona this 20-th day of November, 1997
                                                  ___________________
                                                        Fabrikant