The Court of Appeal was my last chance. It's not a friendly venue at the best of times, and it doesn't get friendlier when it's hearing a self-represented renegade arguing against the pillars of society. But the law is the law, and I had a solid case.
That's what I thought until the judges walked in to the courtroom. It was a panel of three...McInnes, Manilla, and Marc Monnin (there are two Monnins on the bench). McInness opened the show, telling me they had reviewed the written submissions and it came down to the question of malice: the Schoolteachers were protected by qualified privilege unless I could prove malice.
I couldn't believe my ears. "That's not the law", I told the judges. This is a motion for summary judgement. If it was a trial, I would have to prove malice. But at the summary stage I only have to show that there is evidence from which malice might be inferred."
I could almost swear that McInness snorted in disapproval. He knew I was right, but he wasn't going to let that get in the way of the decision he had already made. And the other judges on the panel clearly fell in line behind McInness. No one was going to give any credence to anything I said.
They wanted malice? Then let's go through the evidence. I started going through Mr. Tram's diary, showing how he twisted the facts to make me look bad. When I got to the part where he reported me for "tapping" a student on the shoulder, and then Principal Skull told the university I had "grabbed" the student, Manilla said "That doesn't prove malice. That could just be carelessness, or even incompetence." (Because "incompetence" doesn't equate to malice!)
But that's not the law, I told them. On summary judgment, if the facts (which were undisputed) support two possible inferences, then the responding party (that's me) is entitled to the most favorable inference. It doesn't matter that the judge hearing the motion might prefer a different inference. The facts have to be incapable of supporting an inference of malice. That's the law.
The judges just snorted at me.
Then I turned to the question of whether Justice Martin (whose ruling I was appealing) had improperly considered evidence of my problems at the University of Winnipeg in making his decision. I showed the panel how Justice Martin had considered it significant to consider that the complaints against me by my professors occured "prior to and independent of" the complaints by the schoolteachers. "So what?", I asked. "Even if everything the Professors said about me was true...the disruptions, the home invasions, even the death threats...so what?" I was suing the Schoolteachers because they said I had refused to hand in lesson plans.
It happens to be a well-established principle of criminal law that the prior convictions of an accused cannot be used against him. If I am charged with robbery, the prosecution cannot tell the jury that five years ago I was convicted of assault. It's called a "propensity" argument (that I have a propensity to break the law) and it's illegal. There is an exception...if my credibility as a witness is at issue, then the prior history might be evidence of a propensity to lie...but even there it's not a blanket presumption. Does someone who commits an assault necessarily have a tendency to lie?
In any case, no one at any stage of the proceedings had ever questioned my credibility. But the judges didn't care. "This isn't a criminal trial", Manilla told me. (I looked it up when I got home...the same principles apply to civil cases.) "And you were clearly out of control (at the university). Justice Martin had every right to take that into account."
No he didn't. Not according to the law. But it seems the only law that counted in that courtroom was the law that Marty Green was going to lose his case.