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for me; I was acquitted of the criminal charges against me (the mischief charge, that is: the forcible entry charge was withdrawn by the crown on the very last day of the trial.)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.

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. 

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...

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 29^th.

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 22^nd, 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.