Countdown to Criminal Trial

While I keep the pot simmering on the civil cases, the criminal charges against me are looming. In theory I go to trial at 10:00 am on September 3rd in Rm 403 of the Law Courts Building for charges arising from my "forcible entry", "mischief", and "trespassing" commited at the U of W on February 7th of this year.  (You can read about those events in a series of blogposts starting here.) Criminal trials are open to the public, so feel free to attend and watch me defend myself.

Trespassing on quasi-public property is a problematical charge. Under the Petty Trespassing Act, a property owner has the right to order you off the property without giving any reasons. In theory, this applies to private homeowners, storekeepers, shopping mall owners, and quasi-public corporations such as the Univeristy of Winnipeg. But according to my research, the courts have been reluctant to apply trespassing laws against people charged with being in an area to which the general public is normally allowed unrestricted access, unless it can be shown that the property owner had some legitimate reason for asking the "trespasser" to leave. That's going to be the basis of my defence.

The University issued its Trespassing Notice against me on the evening of January 11th, 2013, after it was  reported that I had tried to force my way into the home of one of my former instructors. I'm going to argue that those reports were the reason for the trespassing order, and that I should therefore be allowed to introduce evidence into the events of that evening. Accordingly, I went to the Provincial Court three weeks ago and asked the Justice to swear out subpoenas on various U of W employees who had been involved in discussions leading up to the issuance of the trespassing order.

The Justice on duty wouldn't give me the subpoenas. She said she could only give me subpoenas against witnesses to the actual trespassing, which took place a month later. I didn't agree with her, so I wrote up an Application to appear before a Provincial Court Judge and ask for the subpoenas. In my Application, I argued pretty much what I have said in the previous paragraph: that no one gets convicted under the PTA for trespassing on quasi-public property unless there is some justification beyond "we told you you weren't welcome here".

The Judge agreed with me. Actually, even the Crown agreed with me. They said they wouldn't oppose my application for subpoenas, and furthermore, they said they had conferred with the U of W and they wanted me to serve the subpoenas directly on the Univerity's lawyer, Brian Meronek. And the Judge agreed.

I could hardly believe it. I said to the judge, "It sounds like you just saved me $300 in Process Server fees." The Judge agreed that it was so. Ordinarily, in criminal cases, the defendant has to hire private process servers to deliver his subpoenas. For whatever reason, I was being given a free pass on that.

I left the courtroom ecstatic. I got my subpoenas the next morning, and went straight to Mr. Meronek's office to serve them. He wasn't in; that's OK, he would be back the next week, so I could serve him then.
I sent him an email and left him a phone message.

When I heard back from Mr. Meronek on Tuesday morning, he told me he knew nothing about any subpoenas. I explained what had happened in court, and told him I would give him the contact information for the Crown Attorney so he could find out exactly what the judge had said. I suggested that if he did not want to deal with the subpoenas, perhaps Colin Morrison, the University's in-house lawyer, would be willing to do so.

Here is a copy of Mr. Meronek's response to me:

Marty;

   As indicated to you, I do not represent any individuals you wish to serve in your criminal matter. I only represent them in the civil matters you have brought against the University & its representatives. Accordingly, I have no instructions to accept service on their behalf. I suspect that the indication on record concerning my accepting service of documents was predicated on the University & myself wanting to  make certain that, any in any civil matters , I was the person to be served on their behalf. It did not extend to the criminal charge.

  Accordingly, I suggest the proper course of conduct would be for you to engage a process server to serve your subpoenas. Attempting personal service would only complicate matters for you. I cannot speak for Mr. Morrison, as he is on vacation, but I would expect that he would concur.

         Brian.

Things get nastier and nastier.

I haven't posted for almost three weeks. It's not that nothing's been happening...quite the contrary. It's just that there have been a lot of intricate maneuvers involving myself and opposing counsel, and I didn't want to queer the outcome by spilling things in public unnecessarily.

But hey...what the heck.

When we left off last, I was telling you how I had extended feelers to former U of W Veep John Corlett to see if I could examine him for discovery. Mr. Meronek, counsel for the U, didn't like that at all. He wrote me back, with a copy to Mr. Corlett, using language that I thought implied that I had no business trying to subpoena Mr. Corlett.

I didn't think that was right, and I wrote Mr. Meronek telling him so. Mr. Corlett was my witness, and I was going to have enough trouble to convince him to come all the way from Edmonton  and testify for me without Brian Meronek butting in and questioning my right to examine. (Which is my right.) Anyhow, after telling you all that, it seemed there was nothing left to do but post the actual exchange of correspondence between us. Which I did.

But it didn't end there. In my last letter, I told Mr. Meronek that I though he should write Mr. Corlett back and clear up any wrong impressions he might have left about the way Examination for Discovery is supposed to work. Did Mr. Corlett agree to my request? He did not.

Here is what he wrote back:

Mr. Green;

     I remind you that I was copied on your exchange of emails with Mr. Corlett. I responded to both you & Mr. Corlett as to my position on behalf of the University. I was clear & direct. I cannot prevent you from reading in any innuendo you wish to conjure up, which seems to be your wont. Nevertheless, let me repeat, I will resist any attempt on your part to examine Mr. Corlett as a representative of the University given the fact that he is no longer associated with the University.

    As to Affidavits of Documents & Examinations for Discovery, again let me repeat ,until the Appeal of the decision of the Master is dealt with, we will oppose any attempt at Discoveries. You are incorrect in stating that there are no interlocutory motions outstanding . As you have filed a Motion to strike out the Statement of Defences, you will have every opportunity to argue your position.

    Furthermore, if you think I am intimidated by your threat to lodge a complaint to the LSM, you are sadly mistaken; although from my vantage point, it will be nothing more than another unnecessary distraction. I would also observe that in the absence of such a complaint , it is not appropriate to include Mr. Fineblit in this exchange.

     Lastly, I would ask you to refrain from copying my client, Mr. Morrison, on future communiqués & leave it up to me to make the requisite contacts with my client.

                                                                     Brian

So Mr. Meronek claims that since he is appealing my victory on his Motion for Summary Judgement, that all other proceedings are on hold until then. Well, I don't think he's right about that. In fact, I went ahead and filed a motion in which I ask the court to compel him to cough up answers to the written Interrogatories which I filed last November, and which were indeed put on hold while his original motion for summary judgement was before the courts. But that motion was resolved in my favor: and according to the Queen's Bench Rules, there is no automatic stay of proceedings pending an appeal of such a motion. And when we appeared before the Master on August 2nd, that's just what the Master told Mr. Meronek. My motion is going ahead...in fact, that's the motion he refers to in his letter when he says there is an "interlocutory motion outstanding".  It's a strange case of circular reasoning...first, he refuses to respond to the interrogatories; then, when I file a motion to compel him to respond, he says he doesn't have to because there's a motion before the court. Interesting. We'll see how that works out.

Then he accuses me of conjuring up innuendos in my head. Okay, that's fair comment. What innuendos did I impute to his letter? Quite simply, I objected to the suggestion that Mr. Corlett would be under no obligation to testify, even if I should subpoena him; and that there was something improper about my attempts to do so.

I've re-read Mr. Meronek's letter again and again, and I think he does give those impressions. But if I'm wrong...if it's just something I've conjured up...wouldn't it be simple for him to clear the air by explaining to Mr. Corlett that although the University will do its best to prevent him from having to testify, that it is indeed my right under the rules of discovery to name an ex-employee as the university's designate?

But Mr. Meronek is not willing to say that. Instead, he compounds the wrong by saying that I have conjured this up out of thin air "as is my wont". As is my wont?

And then he complains because I sent a copy of my response to Colin Morrison, the Univerity's house lawyer. Well, I don't see how he's entitled to make these kinds of derogatory comments about me and spread them all over the email, and I'm not allowed to respond to the same people. So I wrote him back as follows:

Dear Mr. Meronek:

As you know, I have been trying since last year to examine Mr. Corlett on behalf of the university. Those attempts were temporarily put on hold while your motion for Summary Judgement was before the courts. As you know, that motion was resolved in my favor last month. Accordingly, I contacted your office on several occasions to make arrangements for the resumption of the discovery process. You did not respond to my repeated inquiries.

I therefore took the step of approaching Mr. Corlett directly, and he indicated his willingness to comply with his legal duties, although not surprisingly he did not wish to appear to be taking sides in this dispute. I informed him, to the best of my abilities, as to what I thought were his legal duties; and since I am not a lawyer, I copied the correspondence to your office so you would be able to correct any errors that I might have inadvertently made. I even suggested to Mr. Corlett that you would most likely be willing to advise him on his situation if he so requested.

I was therefore dismayed to see that you had copied him the letter you wrote me on Monday, which seemed to me to suggest that I ought not to be contacting him at this stage of the proceedings, and that he ought not to be appearing on behalf of the University. I expressed this concern to you, and you characterised it as an "innuendo" which I had "conjured up". Perhaps it was; but in that case, it should have been easy for you to dispel that innuendo by advising Mr. Corlett, as I suggested, that I did indeed have the right to name his as the University's designate on discovery.

You did not do so. In fact, your subsequent letter compounded that innuendo. If you believe I am not entitled to call Mr. Corlett as  the University's witness, I urge you to so advise him; in which case I will indeed complain to Mr. Fineblit that you are interfering with my witness. In the meantime, I feel it is an improper innuendo which you ought to clear up in my favor, and you ought to do so immediately.

I am further dismayed to see that you have characterized me as a person who is prone to "reading in any innuendo (you) wish to conjure up". It is perhaps fair comment to claim that I misread the intent of your letter of Monday the 21st (although I do not believe I did); but I cannot for the life of me see how you are justified in telling Messrs. Corlett, Morrison, Fineblit, Bock and Mackwood that such behavior is my "wont". I must therefore insist that you retract this gratuitous and unnecessary allegation.

Once I am satisfied that you have done so, I will remove Mr. Morrison from this distribution, as you requested in your previous email. In the future, if you wish to copy our correspondence in confidence to a third party, I suggest you use the "Bcc" function in your email program, as I do when I find myself in similar circumstances.

Marty Green

Butting Heads with Opposing Counsel

I started to tell you yesterday about my recent moves to recapture the initiative in my legal proceedings since getting a favorable ruling in the U of W's Motion for Summary Judgement. I don't want to give away all my moves here but one thing I've done is contact John Corlett, former U of W VP now occupying a similar post at Grant McEwen University in Edmonton, to feel him out with regard to bringing him back to Winnipeg on Examination for Discovery. Yesterday I showed you a copy of the letter I sent to Mr. Corlett just last week.

Mr. Meronek of D'Arcy and Deacon wrote back to me shortly thereafter, with a copy to Mr. Corlett, indicating that he would oppose any attempt on my part to examine Mr. Corlett on behalf of the University; that there were other current employees who would be more suitable as the University's designate on Examination for Discovery, and further, that my attempts to reschedule discovery were in any event premature pending the resolution of his appeal on the Summary Judgement motion.

I think Mr. Meronek was wrong to write that letter. The Queen's Bench Rules on Examination for Discovery state that when a corporation (which is to say, the U of W) is being examined, the examining party (that's me) is entitled to name the person to be examined, who can be a present or former employee (that would be Mr. Corlett).

I don't know why the rules are written that way. Probably because often there is a lapse of time between the filing of a claim events and the examinations, so that in the natural course of events employees come and employees go. But then there is the possibility of the "disgruntled ex-employee" scenario. The officers of the corporation are naturally going to be hostile to the party who is suing them, and will be very guarded in what information they are willing to divulge on discovery. In the case of an ex-employee, however, not necessarily. That is of course the reason why I chose to name Mr. Corlett as the University's designate, and that is undoubtedly why Mr. Meronek is so vehemently opposed to my selection. I don't know if Mr. Corlett is disgruntled. For all I know, he may be perfectly gruntled (although the tone of Mr. Meronek's response leads me to think otherwise.) But in either case he is no longer under the strict control of the U of W, so there is the possibility that I might get something out of him that I wouldn't get if I examined, say, Lloyd Axworthy. That's worth something to me.

What can Mr. Meronek do about it? In fact, the Queen's Bench rules do allow him to oppose (on a motion) my choice of examinee. But I'm not sure he'd succeed in such a motion. The rules, after all, specifically allow me to choose whom I will examine; if they also allow him to oppose that choice, surely it must be on the basis of something more than "we don't want Mr. Green to examine Mr. Corlett".

These are all interesting questions, and it's hard to say exactly where we're going with this. (And there are of course things that I could say but I won't for strategic reasons.) What I found objectionable about Mr. Meronek's letter was that it seemed to me, at least, to imply that there was something improper about me trying to examine Mr. Corlett...and in conveying that impression to Mr. Corlett, he was in effect making it more difficult to obtain his cooperation as a witness.

I didn't think that was fair play, so I wrote back to Mr. Meronek, with a copy to Mr. Corlett, insisting that Mr. Meronek write back to Mr. Corlett with a more explicit statement of his duties in the event that I were to subpoena him, including a stipulation that it was my right to designate Mr. Corlett as the University's representative.

And I told him if he didn't, I would consider filing a complaint with the Law Society.

------------------------------------------


When I started writing about this yesterday, I said I didn't want to start posting  excerpts from people's confidential correspondence. But I think I'm going to have to make an exception here. I've already posted the gist of what Mr. Meronek wrote me, and I've criticized what I called the "implication" of his remarks. So it really isn't fair of me to leave it at that. Here, then, is the text of the letter of Mr. Meronek which I objected to:

Marty;

   We will oppose any attempt to have John Corlett examined. He is no longer associated with the U of Winnipeg & there are other current employees who have the requisite knowledge. In any event, as you are aware , we are appealing the decision of the Master & you are also facing a Summary Judgment motion from the other Defendants. Until those proceedings are resolved , it is pre-mature to arrange Examinations for Discovery.

         Brian.

And while we're at it, for the record, here is how I responded to this letter:

Dear Mr. Meronek:

I am concerned that your letter of this morning, which you copied to Mr. Corlett, may have given him the impression that he is not required to appear for examination, even if I proceed to subpoena him; or at the very least, that there is something improper about my attempts to examine him for discovery.

If this is indeed how you, as an officer of the court, wish to advise Mr. Corlett, then I think you ought to say so explicitly; in which case, I will consider filing a complaint with the Law Society; I am not a lawyer, but I would think such advice would constitute a form of obstruction of justice. Otherwise, I would urge you to advise Mr. Corlett that under the Queen's Bench Rules:

 i)  that I am indeed entitled to name an employee, past or present, as the university's designate for purposes of discovery; 

 ii) that having filed my Affidavit of Documents last year, I am now entitled to proceed to oral discovery;

 iii) that notwithstanding your appeal of Master Berthaudin's recent decision, there are at present no outstanding interlocutory motions in this matter which would entitle you to an automatic stay of proceedings.

Ordinarily it would not be my place to make demands as to how and when you ought to advise a third party; but in the present circumstances, where your letter has so severely compromised my legitimate rights to discovery, I do not see what lesser remedy would be sufficient.

Perhaps you have other advice which you feel justified in offering Mr. Corlett; that is your right. In any event, if you do not satisfy me that you are taking immediate steps to correct what I believe is a very wrong impression that you have given Mr. Corlett, then I will proceed accordingly.

I hope you understand my position in this matter.

Marty Green

Things Get A Little Nasty

I've been posting rather sporadically as of late because a lot of what's going on involved correspondence between myself and opposing counsel; and I don't want to give them any reason to think they shouldn't communicate freely because their words might re-appear on this blog. But that doesn't mean I can't tell you what's going on.

As you know, if you've been following the case, the Master rejected the University's motion for Summary Judgement. In the meantime, various things have been put on hold, most notably:

1. The University has refused to file its affidavit of documents.
2. They have refused to provide answers to written interrogatories which I have filed and served.
3. They have refused to cooperate on oral Examinations for Discovery which I have been trying to schedule.

There is also the matter of my Motion for Exclusion of Parties which I filed last November and which has been on hold since January. That's the one where I ask the Court to exclude the University's various witnesses from each other's testimony so they don't have the opportunity to tailor their evidence. That motion has been on hold since January.

And there are also various other things sitting in limbo including Application for the Court to order Professor Metz to give me a grade on an assignment which he refuses to mark, and the Motion for Summary Judgement in my defamation suit against Professor Bush and his wife for accusing me of carrying out a home invasion, where I am still waiting for the University to file its Motions Brief.

To make a long story short, I wrote a number of emails over the last few weeks asking opposing counsel to inform me of their intentions on these and other matters, and I received basically no response. In the meantime they have appealed the Master's Ruling, and the Gordon Bell schoolteachers (the other defendants in this case) have announced that they intend to also file their own Motion for Summary Judgement.

So I finally decided I'd take matters into my own hands. I have been trying since last year to proceed with oral Examinations for Discovery, and had already scheduled an examination of former Academic Vice-President John Corlett when the University moved for summary judgement. Since then, Corlett has moved to Edmonton, which complicates my attempts to examine him. So I wrote him directly, explaining my intentions and asking him to comment. I copied my correspondence to opposing counsel and waited. A few days later, Corlett wrote back, saying only that he would comply with his legal duties.

It's understandable that a person just starting a new job (he's a Vice-President at Grant McEwen University in Edmonton) wouldn't want to get involved in old disputes involving his former employer. I respect that. So I wrote him back as follows, copying as always my correspondence to Mr. Meronek of D'Arcy and Deacon: (I don't intend to make a habit of reposting private correspondence in the blog, but I don't think I'm compromising anyone's confidentiality by showing you the letter I sent to Mr. Corlett).

Dear Mr. Corlett:

 

Thank you for your response to my inquiry. As you probably understand, your strict legal obligations are not engaged until such time as I serve you with a subpoena. However, I think it is not unusual in these situations for the parties to confer ahead of time on logisitics, e.g. convenient dates, acknowledgement of service, etc. Sometimes this is done through opposing counsel, but in this case I am not sure they have been communicating my intentions to you. That is why I approached you directly.

 

I am wondering if you would care to inform me as to dates, in August if possible or otherwise later in the fall, as to when you might be available; if you would agree to the sum of $600 as satisfactory compensation for travel and expenses which I am obliged to cover (Mr. Meronek can advise you if necessary on how this is calculated); and whether you would be willing to acknowledge service of Notice of Examination by return mail rather than put me to the expense of hiring a process server in Alberta. I hope you will let me know how you wish me to proceed in this regard.

 

Regards,

 

Marty Green

And then things got interesting...

Don't Call Us, We'll Call You

Haven't posted for a few weeks because there's some legal maneuvering going on that's not exactly reportable But I just heard an old song from the 70's on the radio and I had forgotten how clever it was. "Don't Call Us, We'll Call You" was recorded by a two-hit-wonder band called Sugarloaf and it's about a group trying to get a record contract and getting the brush-off wherever they go. It has the lines:

"Listen boys, you paid for the call:
You're not bad, but I've heard it all
Before...."

and then the guitar lick "da..da..da-da-da DAH...da, da da..." while the voiceover says "sounds like John Paul and George". (It's a Beatles lick). I just love the way they work that kind of thing in. So I looked it up on Wikipedia, and it turns out there are a few more zingers. Notably, they touch-tone beeping you hear at the start of the song is actually an unlisted number at CBS records, who had just turned the guys down for a contract. Very smart.

Anyhow, if you've been following my fight with the University, I told you I won a judgement in my favor on their Summary Judgement motion last month. Well, the judgement has now been posted online at canlii.org, so you can read it here if you're interested. You'll see that I've been awarded costs, which theoretically should come to something in the neighborhood of $2000 if and when I can collect it. The University has now turned around and appealed the ruling. That doesn't hurt me: I beat them once and I'll beat them again. But they gained six months on their losing motion, and I guess if they gain another six months is worth another few thousand to them. Anything to stop me from having my day in court.

So we'll see what's next. Meanwhile, here's that song I was talking about...

Score: Green 2 - U of W 0

This one was a while coming, but the verdict just came in. I told you that we argued the University's Motion for Summary Judgement back in April. Well, the Master dismissed the motion, and I don't think I'm exaggerating when I say that reading through his decision, it was pretty much a slam dunk. So in theory we can now move forward and go to trial.

Except we're not there yet. First of all, just before the motion was filed in January, I was about to proceed with discovery. I had filed a motion asking for the right to examine the defendants separately from each other, so as to make it more difficult for them to harmonize their testimony. That motion was put on hold while we argued the Summary Judgement; now I have to put it back on the table.

And that's not all. In the meantime, the schoolteachers (the Gordon Bell defendants, who didn't participate in the University's motion for Summary) have now announced that they are going to file their own Motion for Summary Judgement. The University, even though they lost the motion, managed to gain six months by their maneuver; I'm guessing that's all they really wanted to accomplish anyhow. And apparently the schoolteachers are now hoping they can do the same. We'll see how that works out.

It's going slowly but it's moving forward. After taking a beating in the kangaroo courts of the university, I've now argued two motions in front of a real court, and I've beaten the University twice. It's a long way from here to ultimate vindication, but I'm working on it.

Bigger is Better

I told you about my geodesic dome a few weeks ago. I just finished a new one, and it's bigger. You can sit inside and smoke a cigarette or do whatever you want. Here is a picture of it:

I've put it up on Kijiji if you're interested in buying one.