Friday, June 12, 2015

In Which I Subpoena Jan Stewart

Two and a half years ago, as part of my conflict with the university, I called at the home of Professor Bush to serve him legal papers. I first phoned ahead, but he slammed down the phone on me without letting me tell him the purpose of my call. When I rang the doorbell seconds later, he sent his wife to the door and disappeared down the basement. I told Mrs. Bush I wanted to see her husband, and extended the legal papers towards her by way of showing her the purpose of my visit. She refused to accept the papers or call her husband, and then, without warning, shut the door on my outstretched arm.

After I left, Professor Bush called the police. He also called his colleague Professor Metz, and a flurry of communications ensued in which it was widely reported within the University of Winnipeg that "Marty Green had just tried to force his way/break into Professor Bush's home." The University immediately issued a "No-Trespassing" order banning me for life from their campus. I demanded to know what I was accused of. (No one told me that I was accused of what they were now calling an attempted "home invasion.")  When they refused to provide particulars, I told them I would defy the trespassing ban unless they would inform me of exactly what the Bushes said I did. And that's what happened. As a result they had me charged with trespassing, criminal mischief and forced entry.

At my subsequent criminal trial, I subpoenaed the Bushes, Professor Metz, and U of W VP Neil Besner (who ordered the trespassing ban). As a result I got disclosure of all kinds of correspondence in which I was accused of the attempted break-in. The criminal charges were dropped, but the judge convicted me on the trespassing count. That is presently under appeal.

In the meantime I had sued for defamation: first the Bushes, and later, as a result of the disclosures at my criminal trial, Metz, Besner, and the University of Winnipeg.

The first ones to file their statement of defences were the Bushes. They had a problem: they were up first, and had to file their defence before my criminal trial. There were  basically two defences available to them:

1. They could deny my claim, saying: "We never said nothin about no home invasion".

2. They could plead justification, saying: "Yes, we accused him of trying to invade our home, because he did try to invade our home."

The Bushes chose Option 1. They denied accusing me of a home invasion.

But they had a problem, because meanwhile the University was going ahead with the criminal charges. And I was defending the trespassing charges on the grounds that they had no valid reason to ban me from the campus. Well, the University said they did have a valid reason: namely, the alleged home invasion.

In a nutshell, here was their problem. The lies they needed to tell to beat me in the civil case (the defamation action) were different from the lies they needed to tell to beat me in the criminal case (the trespassing charge.)

The criminal trial was a disaster for the university. My claim in defamation suffered from one serious flaw: I knew what the Bushes had accused me of, but I didn't have the actual words spoken. It turns out it's very hard to win in defamation unless you can pin the exact words down. But to my astonishment, there was all kinds of documentation that came to light in the civil trial, including repetition of the slanders by Metz and Besner. So I filed an additional lawsuit naming those other parties as well. In that claim, I also state that the University, in issuing the trespassing order, was by implication accusing me of outrageous behavior which would justify my being banned from their property. In other words, the issuing of the trespassing order was in itself an act of defamation.

As you can see the Bushes were by now pretty deep in the toilet. But in addition the University was now also on the hook. How would they defend themselves?

In their Statement of Defence, the university denies that the trespassing order, by implication or otherwise, suggests that I was guilty of some form of misconduct. And to the extent that it does, they say they are entitled to make such implications under the doctrine of Qualified Privilege.

What is meant by "qualified privilege"? In its simplest case, it means if you apply for a job somewhere, and your previous employer gives you a bad reference, you can't sue him for defamation. He's entitled to give his honest opinion about you, even if it's damaging, and even if it's not long as it's his honest opinion. If he slams you maliciously, then he has exceeded the privilege. That's why it's called "qualified privilege".

There is a legal definition of when someone is allowed to claim the protection of qualified privilege, and the Courts have been pretty liberal in extending those circumstances. So its an arguable proposition, which I'm not going to delve too deeply into right now. But the bottom line is to meet the test, they have to show first that the circumstances of the communication brought it under the umbrella of the claimed privilege, and secondly that that privilege was exercised without malice.

Which brings us up to the events of last December when I subpoenaed Jan Stewart, acting Dean of Education at the time of the "home invasion". In their Statement of Defence, and their supporting affidavit material, the University admits to sending an email to all members of the Education Faculty stating that I was banned from the property, and they should notify security if I were seen on campus. They claim that this communication falls under the umbrella of qualified privilege.

I will be disputing that claim when we argue it in court. But I will also be challenging their implied assertion that the communications issued with regard to this matter were limited to those which they admit to sending in their affidavit material. And once again, my source of information is the evidence from my criminal trial.

At my criminal trial, Security Chief Martin Grainger told the court about a horrifying verbal assault which had been reported to him by one of my classmates. Apparently this girl had invited an ASL translator to participate in a presentation, and I had launched into a screaming tirade against this innocent woman. I protested to the judge that this was hearsay, and I wanted to cross-examine the student who had made these accusations. The judge refused, citing irrelevance and safety concerns for the student.

I told the Judge that the law didn't work that way. If they had a witness who was afraid to face me in court, they can't get around it by having someone else report what she said. As my authority, I cited the scene in Godfather III where they have to let Michael Corleone off the hook when their star witness gets "cold feet". But the Judge held firm.

So instead I subpoenaed Mrs. Cantor, the instructor in whose class the alleged verbal assault took place. Mrs. Cantor quickly put those accusations to rest. No, she said, there was no verbal assault: in fact, I was quite polite and respectful to the ASL translator.

But in fact, Mrs. Cantor had herself written me up for the same incident, and reported it in very disturbing terms to the Dean. Why had she done that, I asked? Because the Dean asked her to, she replied. She squirmed around a little and said that her letter only reported the concerns of the student, not her own feelings about the incident. Shouldn't she have made that clear in her letter, I asked her? Mrs. Cantor had no answer. (Except to ask that I please refer to her as Doctor, not "Misses" Cantor.

But that aside, there was one more interesting fact that came out of Mrs. Cantor's testimony. I asked h er if she knew that I had been kicked out of school. No, she didn't she first claimed; but then, she recalled she had indeed been contacted by the University about the incident at the Bush home.

Who called her, I asked, and what did they say? She wasn't sure, but she said it was a woman. (Jan Stewart was acting dean at the time.) And as for what she had been told, it was very minimal; only that I had visited the home of another professor.

Really now? The Dean of Education phones you up to tell you that a former student of hers had called on the home of another professor? Nothing more?

Well, Mrs. Cantor then admitted that she understood there had been something inappropriate of my having made that "visit". But then here memory went blank and she couldn't remember any more details.

And that brings us up to last December. The University was claiming that any communications they made regarding the Bush incident fell under the protection of qualified privilege. I was going to find out just how the Stewart phone call fell under that privilege. And so I subpoenaed Jan Stewart.

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