Grounds for Appeal

I filed an appeal on my trespassing conviction this morning. Here are the official grounds for appeal which I submitted to the court as part of my application. (Yes, I know, I spelled Appellant wrong. Get over it.)

GROUNDS FOR APPEAL

1.         The trial judge erred when she failed to find that the University of Winnipeg had acted arbitrarily or maliciously in banning the Appelant from its property: in particular,

a)    when she found the University was justified in basing its decision on the perceptions of others as to the nature of the Appelant’s conduct, rather than its own findings as to the Appelant’s actual conduct;

b)    when she failed to take into account that the University had based its decision on false and inaccurate reports of the Appelants behavior; and,

c)    when she failed to take into account that the University had denied the Appelant a fair opportunity to challenge and refute the false accusations made against him that led to their no-trespassing order.

2.         At the trial, the trial judge improperly discouraged  the Appelant from examining and cross-examining witnesses on events that took place in 2011 and 2012 when he was a student at the university, and instead urged him to concentrate on the immediate events of 2013 associated with the no-trespassing order; and then subsequently, in her decision, relied heavily on those earlier events to justify the no-trespassing order.

3.         The trial judge erred when she refused to allow the Appelant to call as a witness the person whose hearsay testimony accused him of violent and outrageous behavior; and she misled the Appelant when she told him she would not draw adverse inference against him from those hearsay accusations, but then proceded to conclude that the witness would have been in danger if she ordered the witness’s name disclosed to the Appelant.

4.         The trial judge mis-apprehended the evidence when she found that the Appelant was not a student at the University when he was first banned from the property; drew conclusions that were not supported by the evidence when she found that neither of the no-trespassing orders had  a serious negative impact on the Appelant’s life; and erred when, on the basis of those errors, she concluded  that the “due process” rights accorded the Appelant were sufficient in the circumstances.

5.         The trial judge drew conclusions not supported by the evidence when she found that the University had given the Appelant adequate opportunity to dispute the truth of the allegations against him, and erred when she found on that basis that the University had afforded him adequate due process. 

6.         The trial judge erred when she over-ruled the objection of the appelant to the Crown questioning him on his opinions as to why his professors disliked him.

7.         In finding that the University’s concern for the safety of staff and students was reasonable, the Trial Judge erred when she relied in part on incidents when the Appelant spoke out of turn in class and wrote essays in which he exercised his Charter rights by disagreeing with the opinions of his professors. 

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.And when I challenged her on whether that was even physically plausible, she backtracked and claimed the real reason she didn't call out to her husband was because she was afraid of what I might do to him if he showed himself.

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…