Thursday, September 11, 2014

Why I'm Going To Win On Appeal



Last week the Free Press reported that I was convicted of trespassing on the U of W campus in 2013. The Judge tore quite a strip off me in her written decision, finding the University to be fully justified in barring me for life from the campus in January of 2013. She also found they were justified in having barred me for 12 months exactly one year previously in 2012, when I was still a student. Oddly enough, she saw fit to make that pronouncement even though I hadn’t been accused of violating the earlier trespassing notice. 

It’s funny that she made those findings because the University had originally taken the position that under the Petty Trespassing Act, they don’t need to give any reasons for barring someone. That’s certainly true for any private property owner. If I come into your yard, you can tell me to leave without giving me any reason. And if I don’t leave, you can have me charged with trespassing. You don’t need a reason.

But I argued that a quasi-public facility is different; that there was a common-law right to peaceful entry and use of those facilities which could not be arbitrarily denied without reason. And the judge agreed with me. So what were the University’s reasons for barring me?

That’s where it got interesting. In September of 2012 I filed a lawsuit against the U of W for kicking me out of the Education program. In January (of 2013) I went to the home of one of my former professors to serve papers on him. Professor Bush hung up the phone on me when I tried to tell him the purpose of my visit. When I rang the doorbell, his wife came to the door and told me her husband didn’t want to see me. Then she closed the door on my outstretched arm, which was holding the papers I had come to serve. None of this is in dispute.

What happened next is in dispute. Mrs. Bush told the court that a struggle then ensued, lasting around sixty seconds, in which she desperately fought to keep me from forcing my way into her home. She testified (without being asked) that during that time she was unable to cry out for help to her husband because she was so out of breath from the strain of holding me at bay.

I, on the other hand, testified that when Mrs. Bush started to close the door without warning, I instinctively put up my left hand against the door to protect my outstretched right arm; and that as soon as I realized what was happening, I paused momentarily to consider whether I could legally serve the papers by dropping them at Mrs. Bush’s feet; then, realizing that wouldn’t work, I glanced over her shoulder to see if her husband was within eyeshot; and since he wasn’t, I simply let go of the door and walked away. I testified that the physical confrontation might have lasted as long as one or two seconds.

The Judge found me to be an honest witness who was doing his best to provide a candid account of what happened in the door. But then she also found my version to be consistent with Mrs. Bush’s version! She called it a mere “difference of perception”, finding that although Mrs. Bush’s time estimate was “not accurate”, that the duration of the pushing was “not momentary”, but lasted long enough to engender “a legitimate and honest fear in Mrs. Bush”.

But how did this justify the U of W issuing a lifetime ban against me? Well, immediately after I left, Professor Bush called his colleague Professor Metz, who then emailed U of W VP Neil Besner to report that  “George Bush just called me to report that Marty Green tried to break in his house.” (Yes, Professor Bush’s first name is George. Get over it.) Besner immediately took steps to have a permanent ban posted against me.

The Judge found that Professor Metz had been exaggerating, especially when he later characterised the incident as “an attempted home invasion.” And therefore she was apparently not prepared to find this single incident to be sufficient to justify the trespassing order. She wanted to review the entire context of my relationship with the University. And that, as I promised ealier, is where it gets interesting.

Despite observing that Professor Metz was overly sensitive, perhaps even “hyper-sensitive, she nevertheless found Metz to  be credible when he went on to testify that I had directed a death threat at him a year previously, in the form of a throat-slashing gesture he claimed to have witnessed without being able to see my facial expression. But there was more. Neil Besner testified that after being banned for the first time in 2012, I proceeded to launch a campaign of harassment over the course of the next year, demanding such things as the return of personal property and marked assignments. The Judge, not surprisingly, found that this did not constitute harassment. Security chief Martin Grainger testified about a horrifying incident where I got right in the face of an invited guest and was virtually screaming at her.  The Judge found that this incident never happened.

So what was the “context” which justified the University concluding, on the basis of the confrontation at the Bush residence, that I ought to be banned for life? The Judge found that although I was not a violent person, that I possessed “a single minded determinedness to demonstrate that (my) point of view is the superior one.” In support of this she cited two incidents where, after disagreeing with a Professor, I had used a written assignment as a platform to carry on the argument and prove that I was right.

And that’s why I’m going to win the appeal. If I had written an essay where I raged about my feelings of anger against those professors, that might be a cause for concern. But if the University can kick you out of school, ban you from the campus and even get you thrown in jail (yes, nine days in remand) based even in part on an essay you wrote where you disagreed with the professor, well…

Sunday, August 31, 2014

Judicial vs Administrative Procedures

When is a procedure judicial and when is it administrative? It's a bit of a legal fine point, but it came up the other day when Judge Krahn handed down her decision in my criminal case.

You could say it was a huge victory for me; I was acquitted of the criminal charges against me (the mischief charge, that is: the forcible entry charge was withdrawn by the crown on the very last day of the trial.) She found me guilty of trespassing, but let me off with a mere reprimand. So I "won".

But it didn't feel like a victory when I read her decision. She bitch-slapped me up and down for anything and everything I ever did at the university, and said they were fully justified in both of the trespass orders they imposed on me - the one-year order imposed in 2012, and the lifetime ban imposed in 2013. I'll have more to say about that later, but today's topic deals with a legal fine point.

The Judge wasn't impressed by my argument that they never told me the grounds for the trespassing order, so I didn't have the opportunity to dispute them. In my argument, I cited Stinchcombe, the leading Canadian authority which deals with the right of an accused person to know the case against him. The judge said that I wasn't entitled to Stinchcombe rights because the process was "more administrative than judicial."

It's an interesting observation because in a separate case, I am suing the University for defamation in regards to the exact same trespassing order. Defamation doesn't have to be words: it can be an action or gesture which gives a defamatory message. A well-known example was the lady who sued a shopping centre for defamation when she was marched under restraint by security through the store in view of the general public. The courts found that the spectacle carried defamatory meaning. I argued the same about the trespassing order. The university moved two strike out my claim on the basis that the disciplinary actions against me were part of a "quasi-judicial process", and therefore they had absolute immunity against any defamatory claims.

And the judge agreed with them. That's the law...if someone slanders you as part of a judicial proceedings, you can't sue them for slander. It's called absolute privilege. Notice that it goes much farther than "qualified privilege", which you can overcome if you show malice. Absolute privilege protects them no matter what. And the University's internal star chambers are generally accorded the status of "quasi-judicial proceedings."

Here's what I don't get. It was the same trespassing order both times. Master Berthaudin (in the civil case) found the University was protected by absolute privilege because it was part of a "quasi-judicial process". And Judge Krahn (in the4 civil case) found the University wasn't responsible for giving me my Stinchcombe (disclosure) rights because it was "more administrative than judicial."

I'm appealing both decisions. We'll see if the University can have it both ways.



Wednesday, August 27, 2014

In Which I Reply to Mr. Meronek

I have told you how Brian Meronek, counsel for the U of W, had warned me to cease and desist from contacting new U of W president Annette Trimbee, telling me that if I continued to do so I would be in violation of the recognizance imposed on me when I was released from Headingly last year. (You can read here how the Trimbee's predecessor, Lloyd Axworthy, had gotten me thrown in jail on trumped-up charges.)

Mr. Meronek's argument was that although I was prohibited from contacting Lloyd Axworthy, the ban also applied to his successor in the job of U of W President. I wrote back to Mr. Meronek on Monday. Here is what I told him:

Dear Mr. Meronek:
 
I have reviewed the terms of my recognizance and I find no indication that the prohibition relates to the office rather than the individual. Would you please review it yourself and determine whether or not I am correct? (If I am wrong, then I presume that you saying that according to the terms of my recognizance, I am now permitted to contact Lloyd Axworthy, since he no longer holds the office which he held at the time he was named in the court order.)
 
I have to assume that you advised Ms. Trimbee to ignore my communication on the grounds that it was a violation of a court order. If on reconsideration you determine (as I believe you will)  that you were incorrect in so advising her, I hope you will promptly correct this misinformation, and tell her that there is no legal obstacle for her to communicate with me, or to re-open an investigation into my grade appeal. Once again, I appeal to Dr. McCluskey to come forward and inform the new President as to what he knows about the way I was mistreated.
 
In the meantime, I will wait two more weeks before proceeding with an application for judicial review, in order to allow Ms. Trimbee, on reconsideration, to allow me the opportunity to state my case to the Senate Committee, as Dr. Blair had originally decided before being overruled by Dr. Moulaison.
 
Marty Green, P. Eng.

We'll see how that goes. In any event, the question may become moot by Friday morning. That's when Judge Krahn of the Provincial Court is going to deliver her decision on the criminal charges laid against me at the behest of the University. 

Monday, August 25, 2014

Mr. Meronek Warns Me to Back Off

I told you yesterday how I sent a letter to new U of W President Annette Trimbee, asking her to re-open the grade appeal which was shut down by Associate Dean Moulaison last year after I exposed fraud on the part of the Departmental Appeals committee. As I explained, it was impossible for me to go over Moulaison's head because the University had just obtained a court order preventing me from contacting Lloyd Axworthy.

But Lloyd is gone, so I felt I was at liberty to contact his successor. That raised the hackles of U of W lawyer Brian Meronek. I received the following letter yesterday from Meronek, warning me to cease and desist:

Dr. Mr. Green;
    I have been provided a copy of  your letter to Dr. Trimbee. As the prohibition against contact relates to the office( and not just the individual), you are being asked to refrain from contacting any U of W official . All communications are to be directed through this office. I trust you will honour this request.

Brian J. Meronek, Q.C.

We'll see how this plays out...

Sunday, August 24, 2014

In Which I Send A Letter to the U of W



Lloyd Axworthy is gone and the U of W has a new president, Annette Trimbee.

After the University had me thrown in jail last year on trumped-up charges, I managed to get out on bail only by agreeing to conditions whereby I wasn't allowed to contact various U of W staff including Lloyd Axworthy. This was a problem because at the time I was fighting a grade appeal, and I had just gotten some very good dirt on the Departmental Review Committee. Danny Blair, the chairman of the Appeals Committee had agreed that I would be able to present my findings to the Senate, when suddenly he was removed as chair and replaced by Glen Moulaison, who promptly reversed Blair's decision and terminated my appeal. I wanted to complain to Lloyd Axworthy but I couldn't, because of the court order.

So when Axworthy left and Trimbee came in, I thought it would be a good time to renew my appeal. Two weeks ago, I wrote her the following letter:


Dear Dr. Trimbee:

My name is Marty Green and in the winter of 2012 I was expelled from the Faculty of Education amidst some very disturbing accusations of misconduct on my part. Since then I have been trying to vinidicate my reputation. I have maintained from the beginning that the accusations against me were malicious. The professor who was most instrumental in getting me expelled, Don Metz, was subsequently responsible for having me thrown in jail on the basis of his accusation that I attempted to break into the home of one of his colleagues. I have steadfastly maintainted that Dr. Metz was lying when he made that accusation, and I expect to be vindicated on that charge when the Judge Krahn delivers her verdict on August 29th.

I can assure you that the accusations made by Professor Metz which led to my expulsion in 2012 were just as false and malicious as his subsequent accusations which caused me to be put in jail a year later. But Professor Metz was not alone in making allegations against me. I was never given the opportunity to respond to all of the charges made by various parties, but in at least one case, those charges have since been retracted. Professor Cantor, whose accusations against me were extremely damaging at the time, has since admitted that she never believed that I had done anything wrong, but was pressured into writing me up at the behest of the Associate Dean, John Anchan.

I believe Dr McCluskey (to whom this letter is being copied) knows that everything I have said is the truth, and if you ask him he will confirm it. I am writing you now because September is approaching and the University of Winnipeg still has the opportunity to partially redress the wrong done to me by readmitting me to the Faculty of Education so I can be certified as a teacher.

But there is a second matter on which I also require your response. At the time I was thrown in jail, I was in the midst of a grade appeal with respect to a failing grade I was given on a term paper in Professor Bush’s Philosophy of Science class. (This is the same Professor Bush whose home I was accused of trying to break into a year later.) The appeal was being conducted by Professor Blair. It had been disclosed to me that the Departmental Committee had ratified Professor Bush’s failing grade without even reading the paper in question, and Professor Blair had decided on that basis that I should be allowed to present my case in person to the Senate Appeals Committee (of which he was the chair). Subsequently, for reasons which have never been disclosed to me, Professor Blair was replaced as chair of the  committee by Dean Moulaison, who promptly reversed Professor Blair’s decision and terminated my appeal.

At the same time, I was released from prison under the condition that I was not allowed to contact senior staff of the University. So I was not able to appeal to then-president Lloyd Axworthy to overturn Dr. Moulaison’s ruling and restore my rights to due process as established by Professor Blair. Those conditions are still in place; however, Dr. Axworthy is no longer president, and the court order does not prevent me from contacting to you, his successor.

I am therefore writing you now to ask if you will restore my right to appeal the failing grade, including the right to speak before the Senate Committee, as promised me by Dr.Blair. I think this is only fair. If you do not respond to this request by Friday, Aug 22nd, I will conclude that I have exhausted my internal avenues of appeal in this matter and will then file an Application for Judicial Review.

I thank you for your consideration in these matters.

Marty Green

Dr. Trimbee did not respond.

Thursday, July 3, 2014

The Schoolteachers Win A Round

Life got a little more complicated last month when Justice Chris Martin announced his decision in the Schoolteacher's Motion for Summary Judgment which we argued back in May. You can read the full text of his decision online here. It's not very encouraging.

Justice Martin said my Statement of Claim "falls within that category referred to....as 'the product of wishful, fanciful or imaginative thinking on behalf of the plaintiff'.  There is no substance to it.  There is no air of reality to it."

I think that's a little unfair, and that's what I'm going to have to try and convince the Court of Appeal. The question at issue was whether I could prove malice on the part of the Schoolteachers (Tram and Skull, the Gordon Bell defendants, brought the motion separately from the University of Winnipeg defendants, ("the Professors".) If you've been following this blog, you'll know I told you last month the main arguments I was relying on. They included:

1. The undisputed fact that Tram and Skull concealed their accusations against me from other staff members who might have supported me; and,

2. The undisputed fact that Skull and the University bypassed my Due Process rights under the Practicum Manual and moved for immediate expulsion under the emergency procedures. 

3. The fact that when Tram recorded that I had "tapped" a student on the shoulder, Skull went on to report to the University that I had "grabbed" him by the shoulder.

How does Justice Martin answer these arguments? He answers them by ignoring them. He simply says that whatever discrepancies I found in the Defendants arguments were at once "minor and understandable". 

When we appeared before Justice Martin last month for oral arguments, I told you how he went to great lengths to make sure I felt that my arguments were being heard. And I told you that I when I left the courtroom, I did feel that whatever opinions the Judge had formed prior to the hearing, at least he had listened to my arguments.

I don't feel that way anymore after reading his written decision.



Monday, June 9, 2014

The Criminal Trial Concludes

My criminal trial on charges of Trespassing, Mischief, and Forcible Entry concluded last week, after four days of testimony and argument which began last September. Judge Krahn has reserved her decision until July 7th, so we'll have to wait until then to hear what she has to say. But no matter what the outcome, the trial has been an unmitigated disaster for the University of Winnipeg.

The University thought that they could convict me of trespassing without having to say why I was barred from the campus in the first place. A naive reading of the Petty Trespassing Act might seem to support this notion; after all, if I trespass in your back yard, you don't need to have a reason to tell me to get out. And the Petty Trespassing Act does not explicitly distinguish between private individuals and other "private" property owners such as shopping malls and universities, where the public is generally admitted without restriction. But if the statutory law does not make this distinction, then the common law most certainly does, as I argued in my summation before Judge Krahn. No one has ever been convicted for trespassing on "quasi-public" property without the court inquiring as to whether the manager of that property had a legitimate reason for wanting the person banned.

The ironic thing about this case was that the University had a perfectly legitimate reason to ban me - namely, that I was a psychotic sociopath who had just attempted to force his way into the home of one of his professors. I'd say that's a pretty good reason to ban me from the campus.

But when I asked the Crown Attorney to provide me with a list of the witnesses he intended to call, I saw that there was no one on his list who could testify as to the facts of the home invasion. Well, if he wasn't going to call those witnesses, then I was. And that's when things started to go south for the U of W.

The problem was that the home invasion story was a crock, and everybody knew it. I had called on Professor Bush at his home to serve legal papers on him; Professor Bush had sent his wife to the door, and she refused to accept the papers, slamming the door on me. Then the Bushes got the bright idea of accusing me of attempting to force my way in, and started a round of phone calls that ended up with the U of W issuing a no-trespassing order against me.

So on the first day of the trial, I called the Bushes and various other people who had been involved in those phone conversations, including Professor Metz, Academic VP Neil Besner, Security Chief Martin Grainger, and union rep Lisa McGifford. I knew about all those phone calls because I had sued Professor Bush and his wife for defamation, and in response they had filed affidavits describing all the discussions they had had that evening, and basically denying that they had accused me of trying to force my way in.

And that was their problem. There are two ways of defending youself against a defamation charge: either you say, "I never said that", or you say, "I said it, and it's true". For purposes of the civil case, the Bushes had chosen Option A. But it would turn out that to make the criminal charges stick, they needed to argue Option B. And that's where I had them.

As I told the Judge, the lies they needed to tell to beat me on the criminal case were different from the lies they needed to tell to beat me on the civil case.