R. v. Green, 2014 MBPC 42

CITATION: R. v. Green , 2014 MBPC 42 Date: 2014 08 29 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Anostin Grieves ) for the Crown ) and ) ) ) Martin Green ) Self- Represented ) ) ) ) ) Reasons for Decision delivered: ) August 29, 2014 KRAHN P.J. Introduction [ 1 ] This is my decision on whether Martin Green is guilty of mischief and trespass pursuant to the Petty Trespass Act . Both offences are alleged to have occurred on February 7, 2013. The Crown’s position is that after being served with the notice that Mr.

Green was barred from attending on the property of the University of Winnipeg, he came on to the property in contravention of that order. In addition, by repeatedly breaching the barring notice, he interfered, interrupted, or obstructed the operation of the university by requiring them to lock certain access doors to the main university building and required the hiring of additional security staff and therefore is guilty of mischief. [ 2 ] Mr. Green says he is not guilty of the Petty Trespass Act charge because the barring notice was imposed based on lies and for a malicious purpose.

He says he is not guilty of mischief as when he was apprehended on the University’s property, he was not causing a disturbance, his attendance there was peaceful. He asks the court to find that the laying of the criminal charge was an abuse of process and was laid for the purpose of crushing a private individual in a private dispute with the university. Procedural History [ 3 ] The trial began on September 3, 2013 and then continued on September 25, December 4, December 11, 2013, and June 3, 2014.

At the conclusion of the trial, the Crown stayed proceedings on two Petty Trespass Act charges dated February 1, 2013 and January 29, 2013 and conceded there was no case to meet on the charge of forcible entry, dated, February 7, 2013. I heard final submissions on June 3, 2014. [ 4 ] Mr. Green represented himself throughout the trial. Some peculiarities resulted from this. I decided to relax some of the rules of evidence so that Mr.

Green need not strictly conform with the identification and filing of original or certified true documents, particularly, email and other communication records, in order to ensure that his case could be fully presented to the court as he wished. The Crown consented to the relaxing of these rules of evidence. In addition, in order to accommodate the

schedule of witnesses, Mr. Green called one of his witnesses, Mr. Besner before he completed his cross-examination of Mr. Martin Grainger, a Crown witness.

Again, this was with the consent of all parties. Overview of the Facts [ 5 ] In September 2011, the accused, Martin Green, began a two year program in the Faculty of Education at the University of Winnipeg. [ 6 ] In November 2011, Mr. Green was asked not to return to his practicum placement at Gordon Bell High School. The principal of the high school cited non-compliance with directions and agitated confrontational behavior as reasons for this decision.

This is detailed in Exhibit 6 before the court. [ 7 ] On November 22, 2011, Associate Dean Anchan of the University of Winnipeg made a formal complaint of student non- academic misconduct. The complaint was investigated by the Associate Dean of Science Danny Blair who submitted a report to Colin Russell, Registrar, that the evidence would constitute non-academic misconduct. [ 8 ] Colin Russell was responsible for the administration of the Student Non-Academic Misconduct and Discipline Policy at the University. On December 6, 2011, Mr. Russell wrote to Mr.

Green advising him that he had received the complaint, that the complaint seemed substantive enough to merit adjudication and asked to meet with Mr. Green to review the complaints. The email exchanges between Mr. Russell and Mr. Green were filed in the trial as Exhibit 9. Mr. Green refused to meet with Mr. Russell until he had full “written disclosure” of all allegations against him. [ 9 ] In a letter dated December 15, 2011, Mr. Russell provided a

summary of the complaints made against Mr. Green (Exhibit 5). Mr. Green was not satisfied with this

summary and demanded “a documented list of detailed complaints, including times and dates, and signatures...”. Mr. Russell continued to insist that he wanted to meet with Mr. Green to hear his account and his “counter-allegations” so that he could have a full understanding of the situation. [ 10 ] On January 10, 2012, Professor Metz forwarded information to the Registrar that there had been another incident with Mr. Green in the classroom which he found to be threatening and disruptive. Based on this, the Registrar directed Mr. Green not to attend classes until he (Green) met with the Registrar. Mr.

Green did meet with the Registrar the next morning, who then told Mr. Green he could begin to attend classes again. However the meeting was not a substantive meeting and Mr. Green still refused to discuss the complaints that had been made. As a result, the Registrar, in company of a University security guard attended Professor Metz’s class to serve a letter on Mr. Green advising that he was being suspended from attending classes since “the perception of [his] behavior as aggressive and disruptive in your classes has not been addressed.” (Exhibit 9). In that letter Mr. Russell again offered to meet with Mr.

Green to determine “whether the facts as disclosed by the complainant are in dispute.” (Exhibit 9) [ 11 ] Mr. Russell testified he met with Mr. Green outside the classroom. He served him with the letter. He then saw Mr. Green go into the classroom and make a gesture with one hand across his throat. He asked Mr. Green about the gesture and Mr. Green replied, “it was a private communication.” Mr. Russell interpreted that gesture to be a threatening gesture and decided to bar Mr. Green from University property. This was done by notifying him by email later that same evening.

Exhibit 2 is a copy of this barring notice. This was referred to as the “throat slashing gesture” in the trial. I will review the evidence on this issue in more detail below. [ 12 ] On January 20, 2012, Mr. Russell advised Green of his decision to suspend him from the education program for one year. Mr. Russell provided the reasons for that decision and advised that the barring notice would continue in place. (Exhibit 6) [ 13 ] For the next year, Mr. Green respected the barring notice and did not attend on to University property.

However, he continued to send regular emails to a list of university personnel insisting that three assignments be marked, pursuing grade appeals and seeking the return of personal property. (Exhibits 8, 9, 10) [ 14 ] On September 20, 2012, Mr. Green launched a civil suit for conspiracy to injure based on his removal from the practicum. [ 15 ] In January 2013, Mr. Green intended to serve notice of another legal action on Professor Bush. He consulted with a process server who advised him that if he did not know the address of Professor Bush it would cost $150 to serve him.

If he knew the address, it would cost $60. Professor Green then conducted his own investigation in efforts to locate the personal address of Professor Bush. He called Professor Bush’s residence. Professor Bush expressed outrage that Mr. Green was calling him at his home on what was an unlisted number. Professor Bush directed him to contact his lawyer if he had anything to say to him. Professor Bush then hung up the phone. [ 16 ] Mr. Green walked up to the Bush residence and rang the doorbell. He testified that he was still intending to confirm whether he had the correct address. Mrs. Bush answered the door.

When he identified himself, she said that her husband did not want to see Mr. Green and tried to close the door. Mr. Green had papers in his hand, and his arm extended through the door. The two began to push on either side of the door. Mrs. Bush did manage to close the door. She spoke to Professor Bush and the police were called. [ 17 ] This visit to the Bush’s home by Mr. Green was reported to Mr. Besner, Vice President, Students and International. The Director of Security, Martin Grainger, in collaboration with the University’s legal counsel, then decided to bar Mr. Green indefinitely from the university. Mr.

Green was served substitutionally at his home address on January 15, 2013. Mr. Green referred to this incident as the “home invasion” throughout the trial. I will discuss the evidence surrounding this incident in more detail below. [ 18 ] Mr. Green sent emails to the university urging them to reconsider the second barring notice and demanding details of the complaint made by Mr. Bush against him.

On January 25, 2013, in an email, he advised the university: Having exhausted all other remedies available to me, I therefore find that I have no choice but to assert my rights by presenting myself in person on the University Campus. Unless the University can suggest any other legal avenue of redress for me, I intend to do so at the earliest opportunity. I will make use of any spaces and facilities which are normally available on campus to members of the general public, and I can assure the University that my presence will be peaceful and non-disruptive. If I am asked to leave I will do so

peacefully, but not until I am officially charged with trespassing. (Exhibit 7) [19] Mr. Green was charged with offences under the Petty Trespass Act on January 29 and February 1, 2013 when he was found oncampus. These charges were stayed by the Crown on June 3, 2014. [20] On February 7, 2013, he was found on campus speaking to students in the cafeteria. He had a notice in his hand, a copy ofwhich has been filed as Exhibit 1. The notice is seeking witnesses to an incident which occurred in Professor Cantor’s class regarding anASL interpreter. On February 7, 2013, Mr.

Green was arrested by police and charged with the Petty Trespass Act charge and mischiefand forcible entry. [21] The court record reveals he was released on his own recognizance on February 15, 2013 which included conditions thatprohibited contact with several University of Winnipeg employees and not to attend University of Winnipeg property.

What is the jurisdiction of this court to review the barring notices issued by the University of Winnipeg under the authority of thePetty Trespass Act? [22] The Petty Trespass Act does not require a property owner to give reasons or even have justifiable grounds for barring a personfrom their property. Mr. Green argues that a private property owner can bar arbitrarily or for no reason at all.

But in the case of propertythat is generally open to the public and where the property is quasi-public such as a university, there must be some reasonable basis forthe barring notice. [23] He relies on Dickson J’s words in Harrison v. Carswell (SCC), [1976] 2 S.C.R. 200. In this case an owner ofa shopping mall, had issued a barring notice to a picketer. The picketer was participating in a lawful strike in an area to which the publicwas normally given unrestricted access during business hours. The Supreme Court was asked to value the lawful action of the picketerover that of the landowner.

The majority declined to follow this invitation. The majority held that the Petty Trespass Act does grantowners of property where the public normally has access, the authority to remove or rescind the permission to access the property. Dickson, J. noted that the distribution of pamphlets or leaflets in the parking lot or the carrying of placards in the mall had never beenallowed by the owner of the property. And then commented, “There is nothing in the evidence supporting the view that in the presentcase the owner of the center was acting out of caprice, or whimsy or mala fides.” (at p. 216). [24] Thus Mr.

Green argues that while the Supreme Court of Canada upheld the conviction, there was at least some inquiry into thebasis for the trespassing order. Mr. Green further argues that this case demonstrates that in the context of a quasi-public property, thecommon law implicitly recognized that if a barring notice was given out of malice or arbitrarily, then the court would not uphold such anorder.

I am prepared to accept that, if the evidence demonstrates that the University acted arbitrarily and with mala fides in imposing thebarring notice, he is entitled to an acquittal as the barring notice was not a valid notice even at common law. [25] While the analogy is imperfect, in my view the standard of review that I should use in reviewing the University’s decision toimpose a barring notice should show some deference to the decision of the University, just as in the administrative law context, see Dorev. Barreau du Quebec 2012 SCC 12 , [2012] 1 S.C.R. 395 and R. v. S.A. 2014 ABCA 191 at paragraphs 232-234.

Reasonableness is the standard of review in that context and I will use that standard in this context as well. The Reasons for the Barring Notices The first barring notice [26] On January 11, 2012, Mr. Green was barred, primarily for the “throat slashing” incident observed by Colin Russell but alsobased on the non-academic conduct complaints made by various complainants as described in Exhibit 6. [27] The first barring notice was imposed on January 11, 2012.

It has some relevance to the merits of the second barring noticebecause the second barring notice was based, in part, on the continuation of alleged ongoing misconduct by Mr. Green. Mr. Graingertestified that he informed Mr. Green after he received a second barring notice that he was now barred indefinitely due to past incidentsand the incident at the Bush resident. (September 3, 2011 Transcript, p. 136). [28] Mr.

Green argues that I should find the first barring notice was malicious because he has demonstrated that an incident inProfessor Cantor’s class with an American Sign Language (ASL) interpreter was based on lies and this incident was part of the reasonfor his being barred in January 2012. As well, he has testified before this court that the throat slash was innocent, that this was known toboth Professor Metz and Colin Russell, and therefore did not justify the barring notice.

He asks the court to find that because of theseuntruths, I should not believe anything the university puts forward as reasons to justify the barring notice. I will proceed to describe thefindings of fact I made based on hearing the witnesses to these incidents. Incident with the ASL interpreter [29] Martin Grainger testified that a student had been referred to him by the Associate Dean of Education, Jan Stewart. He could notrecall the date he spoke to the student. The student complained that she had invited an ASL interpreter to a class and that during theclass, Mr. Green had verbally assaulted the ASL visitor.

When cross-examined, Mr. Grainger said the student reported that Mr. Greengot into the ASL interpreter’s face and was screaming at her. She had reported that to the professor, and it went on from there. She was

concerned that Mr. Green would find out where she lived and would then come to her house. [ 30 ] The name of this student has not been disclosed to Mr. Green by the university because of concerns for her safety. Mr. Green told the Court he has launched a legal action against this student as “Jane Doe” for defamation. Mr. Green asked the Court to disclose her identity. I refused to disclose her identity based on the safety concerns and its tangential relevance to the charges before this court. [ 31 ] In order to refute this version of events, Mr. Green called Professor Cantor to testify.

Professor Cantor testified that she had taught Mr. Green for nine to 10 weeks in the fall of 2011. She was a contract instructor. Her course concluded at the beginning of November 2011 so she did not have an ongoing relationship with the University of Winnipeg faculty. Normally she teaches at the University of Manitoba. [ 32 ] In the fall of 2011, Professor Cantor taught special education. She testified that the students were asked to do presentations on different disability groups.

One of the presentations was about students with hearing impairments and a student had brought an ASL interpreter to make her presentation to the class using sign language. At the conclusion of the presentation, Mr. Green asked the interpreter to present the signs again for a few different things. She specifically recalled that he asked her to present the sign again for riding a motorcycle.

Professor Cantor noticed that the student who had invited the interpreter appeared to be getting agitated, so she shut down the questioning and moved on. [ 33 ] The student later forwarded an email indicating that she found Mr. Green’s questions offensive. Professor Cantor was asked if she could see why the questions put by Mr. Green would attract such a reaction. She thought it might have been interpreted that the questions were not respectful of the interpreter.

She testified, “I almost felt that, that Marty felt maybe this was very entertaining and not informative, and I mean, for, for people who have hearing impairments, American Sign Language is very important for them.” (September 25, 2013 Transcript, p. 65) When questioned further by Mr. Green, Ms. Cantor said she felt that Mr. Green was not being negative, that he was not making fun, that it was not mean-spirited. She agreed that Mr.

Green had been effusive in his compliments of the interpreter and what a good job she had done. [ 34 ] Professor Cantor testified that after the student wrote the email complaint, she was asked by Dean John Anchan, to write an honest letter about Mr. Green and his conduct in class. In that letter, she wrote: At the conclusion of one of the final presentations, Marty [Mr. Green] made an inappropriate request of one of an ASL interpreter.

The student had, who had invited the interpreter was embarrassed and offended wrote an email which I have enclosed with redaction. (September 25, 2013 Transcript, page 75) [ 35 ] Professor Cantor agreed that while she did not share the perception of the student about Mr. Green’s actions, she did not include this in her letter. The complete letter was not filed with the Court. The student’s email complaint was not filed with the Court. [ 36 ] She also testified that based on comments made to her by students, she felt that Mr. Green was having an adverse impact on other students.

However, other than this incident, she could not specifically recall other incidents. Although, I should note, that while she was testifying she did seem to recall another incident but Mr. Green said he was not going to ask her about anything else. (Transcript Volume 2, p. 74-75.) [ 37 ] In cross-examination, Mr. Green testified about this incident. He said that he was impressed that in the full flight of translation, the interpreter made a sign representing riding a motorcycle where for an instant, “she looked like a big mean biker, and it was cool when she did it.” (December 4, 2013Transcript, page 50).

When he asked her to repeat the sign she did not do it with the same expressiveness. He pointed that out to her and she agreed that it is different when you are doing it in the midst of an ongoing translation. [ 38 ] Mr. Green explained that he subsequently learned about a tension between the deaf culture and the hearing world: They [deaf people] didn’t want to follow the rules, they wanted to communicate freely, and doing so they changed the sign. They developed their own signs, and part of these signs were the facial expressions.

Why that the expressiveness of your face that went with the signs was a huge part of the communication. But the teachers, the hearing teachers, found these facial expressions to be undignified and they punished students for using facial expressions when they communicated, so the whole, the whole issue of the facial expressions turns out to be a huge sore point within the deaf community. So when the student complains and she says the ALS (sic) translator was offended, it’s quite possible the translator was offended. But for Mrs.

Cantor to, sort of, blame that on me and, sort of, report to the dean that I asked an inappropriate question and offended everyone that people were offended, that, that’s not right, that’s not what happened. There was, as she said, there was nothing mean spirited or, sort of, making fun of anything that I said... (December 11, 2013 Transcript, pages 51-52.) [ 39 ] I agree with Mr. Green that this was not fair and left an incomplete picture. Professor Cantor should have included her own opinion of what she had observed. I agree with him that based on her evidence, there is no support for what Mr.

Grainger recalled being told - that Mr. Green was screaming in the interpreter’s face. [ 40 ] However, based on what Professor Cantor observed in the class which was a student was upset by the questions being asked of Mr. Green. I also accept her evidence that “there were times that when you made comments or said things in class, I don’t know if you thought about how it would affect the other students.” (September 25, 2013 Transcript, page 73) Mr.

Green’s Conduct in Class [ 41 ] Given my conclusion that the incident with the ASL interpreter was not fully or fairly reported to the Dean, it is important to look at some of the other complaints made by the Professors about Mr. Green’s non-academic misconduct in order to determine if there remains a reasonable basis for those complaints, which in part, lead to the first barring notice.

[ 42 ] Mr. Green testified in his own defence in this trial for one day. He was then cross-examined for one day. [ 43 ] Exhibit 6 is the final report of the Registrar, Mr. Russell which details the basis on which he was suspended from class and barred from the campus. In that exhibit more than one person complained that Mr. Green had interrupted the class to express his dissatisfaction with the way the course was being taught. [ 44 ] Mr. Green admitted in cross-examination, that there were occasions where he went to the front of the class, uninvited, to demonstrate or share his contribution.

For example, a fellow student “Aaron”, was assigned to be the teacher. Aaron presented an experiment on measuring the wavelength of light. Following that presentation, Mr. Green was interested to see if he and his fellow students could use the data collected from the experiment to calculate the wavelength of light. He went to the front of the class and began to use the board to record the data and attempt to make the calculation. He admitted that this was uninvited. He also admitted that Professor Metz interrupted him and said, “All right Marty, that’s enough of that.

This is Aaron’s class.” He testified that Aaron then probably asked him to sit down. (December 11, 2013 Transcript pages 58-62) [ 45 ] Mr. Green agreed that Professor Metz’s complaints were based on “elements of things that actually happened.” However, he felt that they were twisted or exaggerated to make him look worse than it really was. (December 11, 2013 Transcript, page 63) [ 46 ] Mr. Green testified both in direct and cross-examination that it is important and proper to disagree with professors.

He admitted numerous incidents where he had disagreed with the Professor and pointed out in the class that the Professor was wrong. [ 47 ] For example, he explained how he disagreed with Professor Bush who had told the class that moles should not be taught in the very first class of chemistry. Mr. Green disagreed and said so in the class and an exchange took place. Mr. Green testified that Professor Bush was angry. A student then told Mr. Green that he was being disrespectful. Mr.

Green admitted he then walked over to the student and said, “why, why, why, why would you say that?” (December 11, 2013Transcript, page 24.) [ 48 ] Mr. Green then dedicated his next assignment which was to create lesson plans on a topic to a demonstration of how to teach moles in the first class of Grade 11 chemistry. [ 49 ] Mr. Green testified that he had a disagreement with Professor Metz about two methods to teach proportional shopping and which was the best method to teach.

Shortly after, in a different course Professor Cantor assigned a short assignment and asked the students to explain how their personal, family backgrounds informed their views on education. Mr. Green used this platform to explain his disagreement with Professor Metz, how he felt Professor Metz was wrong and related it to a family a background, “my people are known for their stubbornness and, sort of, sticking up for their beliefs.” (December 11, 2013 Transcript p. 43). [ 50 ] I agree with Mr. Green that it is right and proper to engage in academic debate and advocate contrary points of view with a Professor.

I believe that was Mr. Green’s intent. However, I am satisfied that his manner of delivering his points of view was aggressive and confrontational. I believe this is evident from the few examples I have cited above. They demonstrate a single-minded determinedness to demonstrate that his point of view is the superior one. [ 51 ] I accept that it is a normal and reasonable

interpretation by both students and faculty, from Mr. Green’s disagreements with professors and how he voiced them in class that he was intimidating and it was interfering with other students’ ability to learn. I accept that his efforts to contribute by taking to the blackboard to demonstrate math equations, as Professor Metz complained of again on January 10, 2013, over the objections of the Professor, was fairly understood as an attempt to take over the class. [ 52 ] There is no doubt that Mr. Green is a very intelligent man. As he told Professor Bush on one occasion, I know a lot, about a lot of things.

But his style of delivery, which I believe, based on the evidence I heard and the manner in which he testified, demonstrate that Mr. Green does easily become agitated, he raises his voice, he uses large dramatic body language and dramatic verbal language. His explanations are lengthy and rambling. He contributed in a way that, even by his own admission, no other student contributed. But this style and approach gave rise, on a reasonable basis to the conclusion that faculty and students experienced his behaviour as disruptive to teaching and learning.

Throat Slashing Gesture [ 53 ] I have already summarized this incident above. I will elaborate and make findings of fact based on the evidence I heard during the trial. [ 54 ] Colin Russell testified after being subpoenaed by Mr. Green. I found Mr. Russell to be a witness who testified in a straight- forward and honest manner and I accept his evidence. Mr. Green came to the same conclusion because at the end of Mr. Russell’s testimony he commented to him: “Mr.

Russell, you’re not my friend, you haven’t done me any favours, but you’ve been reasonably forthcoming in this testimony and I want to thank you for that.” [ 55 ] Mr. Russell agreed with Mr. Green’s suggestions that he did not see Mr. Green’s face when the throat slash gesture was made, he did not see or make inquiries to determine to whom the gesture was directed. He testified that Mr. Green was at the back of the classroom and most students would have had their backs to him. Mr. Russell maintained that he took it as a threatening gesture and felt he had no choice but to take it as a threatening gesture.

He also consulted with Vice President John Corlett. He described to him what he had seen, and he agreed that it could only be taken as a threatening gesture. [ 56 ] In relation to the throat slash gesture, Professor Metz testified that he was just coming into the classroom. Mr. Green had gone out to speak to Mr. Russell and security officers. Mr. Green “barged” into the classroom and was waving a paper around. He then turned and gave a throat slash sign and left the classroom. Professor Metz testified he was extremely concerned about the gesture and the meaning of it.

Professor Metz testified that Colin Russell turned to him and said “did you see that?” Professor Metz testified that the meaning of the gesture was “you’re dead. I’m going to get you.” He was 100% sure about the meaning to be attributed to that gesture. Professor Metz agreed that he did not know who it was directed at but he believed the choice to be between him and the students. He testified he did not discuss his

interpretation of the gesture with Colin Russell. He also agreed that he could not see Mr. Green’s facial

expression as he was at the further end of the classroom and in side profile. Professor Metz testified that after Mr. Green left, he tried togo into a lock down situation but he discovered the doors could not be locked from the inside. He then requested that the doors bechanged so that they could be locked from the inside. He said after that day, security was present outside his classroom when he wasteaching. [57] Mr. Green testified in his own defence. In direct, he said that he walked into the classroom and held up the piece of paper.

Helooked at another party, whom he chose not to identify, and had a private communication. He said it was not a threatening gesture, it wasan innocent gesture. [58] In cross-examination, when pressed, he provided further explanation. He said that a friend of his was in the classroom. Mr.Green said his friend knew about the trouble Mr. Green was in because of faculty complaints. He testified he showed his friend theletter, then made the throat slashing gesture to indicate he was being cut off.

He said he might have tapped his chest first to indicate hewas, the one who was being cut off. [59] This explanation was never provided to the university or Colin Russell. As I indicated earlier, in reviewing the decision to barMr. Green in the first place, I need to show some deference to the administrative decision maker, in this case, Mr. Russell. In my view,the conclusion that Mr. Russell and Mr. Metz came to is entirely reasonable and in fact the only explanation that made sense at the time. [60] In cross-examination, Mr.

Green argued that the throat slash gesture is very common and can be used on a construction site tomean cut the engines. On a band set, it can be a gesture used to signify the ending of a set between players in the band. I agree thatcontext is important. [61] In this case, Mr. Green had just been notified that he was being suspended from classes. I conclude that this is something thatwould have been very upsetting to Mr. Green. It continues to be very upsetting to him. I have had the opportunity to view Mr. Green inthe courtroom over the many days of trial.

He is a man who is excitable, uses large, expressive hand and facial gestures. I believe hewould have behaved in a consistent fashion on that day. Even at that stage, his dispute with faculty members and Colin Russell wasacrimonious and adversarial. In that context, I accept that Mr. Russell and Professor Metz, honestly and reasonably believed that thegesture was a threatening one. It was reasonable for them to interpret the gesture in that way from all they knew and observed. [62] It is unfortunate that Mr. Green did not take advantage of opportunities to meet with Mr. Russell.

But his approach throughoutwas to demand full disclosure and resist any effort by Colin Russell to tell his side of the story. [63] Mr. Green argued both in cross-examination and in his final submission that the University knew that this was not a seriousthreat because they took no steps to protect the students. I disagree. I accept Professor’s Metz’s testimony that additional securitymeasures were added to Professor Metz’s classroom. This evidence is corroborated by that of Mr. Rarick, a security supervisor. Aswell, I accept Mr.

Russell’s testimony that it was the throat slash that precipitated the first barring notice. I concluded it was the “laststraw” in the context of complaints from at least three faculty members that Mr. Green was aggressive and confrontational in class whichhad already raised concerns about the adverse impact he was having on the learning atmosphere for fellow students. [64] Mr. Green urged me to make adverse credibility findings against Mr. Metz because it was like “pulling teeth” to get him toadmit that the throat slash gesture was the main cause for the first barring notice.

As Professor Metz testified, he was not the person whomade any of the decisions to bar Mr. Green. I accept his evidence that he did not know all of the reasons for barring notices and that hehad not been advised of why those decisions were made. This is corroborated by the evidence of Mr. Russell that he did not discuss thethreat gesture with Professor Metz and that he alone decided, after consulting with Vice President Corlett, that Mr. Green should bebanned for that gesture.

As a result, I did not find Professor Metz incredible when he testified that he did not know the throat slashgesture was the reason for the barring notice. Due Process or Procedural Fairness [65] Mr. Green argued strenuously to the university and before this Court that he was entitled to have detailed, written informationabout the allegations being made against him before he would answer them. This is position is not supported by the case law that Mr.Green provided to the Court in R. v. S.A. 2012 ABQB 311 at paragraphs 67-79.

Justice Binder reviewed the relevant decisions from theSupreme Court of Canada which recognized that the principles of fundamental justice depend on the context. Justice Binder concludedthat in the case of a temporary ban from public transit, the person banned would have little or no legitimate expectation to a particularprocedure. In S.A., like here, the process was more administrative than judicial.

Significant weight should be given to the choice ofprocedures made by the University and its institutional constraints. [66] I note parenthetically that in S.A., both the Court of Queen’s Bench and the Court of Appeal found that minimal proceduralfairness required that the barring notice should contain information about how to appeal such a notice. The context in that case isimportant because use of the public transit system is much more integral to the life of a young person, as in a large, spread out city thereare few other options.

In this case, access to a university property where one is no longer a student, is less integral to one’s life. In thiscase, as pointed out by Mr. Green in the legal brief he filed with the court, he did not receive notice of how to appear the barring notice. He has used this court as the appeal mechanism of the barring notice. [67] In his disciplinary dealings with the University, Mr. Green demanded the level of disclosure that is seen in the criminal courts asgoverned by R. v.

Stinchcombe. (SCC), [1991] 3 S.C.R. 326. [68] But the same requirements do not exist for the University attempting to administer a non-academic misconduct policy. They donot exist for a barring notice for a Petty Trespass Act. I am satisfied by giving him a

summary of the allegations against him, in writing,and providing him with the opportunity to be heard that adequate procedural guarantees were extended to Mr. Green. I am not preparedto find mala fides on the basis of the process followed by the university. [69] It is unfortunate that Mr. Green never chose to provide the explanations that this Court has heard, as it may have mitigated someof the decisions made by the University. Instead, he chose to maintain an adversarial, demanding stance which often left the university

in the position of making decisions without hearing his version of events. Conclusion regarding the first barring notice [ 70 ] I find that the throat slash gesture was reasonably and honestly seen by Colin Russell to be a threatening gesture, given the University’s experience with Mr. Green to that point. While, I am satisfied that Mr. Green is not a violent or dangerous individual, it is the reasonableness of the

interpretations of the faculty and Mr. Russell of Mr. Green’s conduct that needs to be assessed. On that basis, I find there was a reasonable foundation and not an arbitrary or malicious purpose behind the first barring notice. The Second Barring Notice [ 71 ] Mr. Grainger testified that a security officer had brought to his attention on January 11, 2013, that Mr. Green’s Petty Trespass barring notice was expiring that day. It was a Friday. Mr. Grainger decided that since there had been no trouble with Mr. Green in the preceding year, he would assess the issue in more detail the following week.

That evening he was advised by Vice President Neil Besner that Marty Green had gone to the Bush residence and tried to force entry. He said he spent the weekend working with university counsel to draft an indefinite barring notice for Mr. Green. He testified that on January 13 th he learned “about some of the other issues that they had in the classroom.” (September 3, 2013 Transcript, page 131) [ 72 ] I concluded that Mr. Green’s visit to the Bush residence was a pivotal incident which lead to the second, indefinite barring notice. It is this notice which Mr. Green is alleged to have breached. Mr.

Green asks this court to find that Professor and Mrs. Bush lied about this incident for the purpose of avoiding service and for a malicious purpose. The “Home Invasion” [ 73 ] Mr. Green’s appearance at the Bush residence has been summarized above in the Overview of the Facts. I will review the evidence in more detail. But first, let me explain, where the term home invasion came from. [ 74 ] On January 18, 2013, Professor Metz, Professor Bush and Martin Grainger attended to the Provincial Court to seek a protection order against Mr. Green. Mrs. Bush was there but waited outside the hearing room.

The Judicial Justice of the Peace denied the request for a protection order. [ 75 ] In seeking the protection order Professor Metz prepared a chronology of events detailing Mr. Green’s behaviour – this chronology is included in Exhibit 10. In this chronology, Professor Metz, described what he had been told about Mr. Green at the Bush residence – that he tried to force his way in. He described this as an “attempted home invasion.” In the same chronology he concludes that Mr.

Green “attacked the Bush residence.” [ 76 ] I would not call what happened at the Bush residence a home invasion as that term is understood in the criminal law. However, since Mr. Green throughout his testimony used this term, admittedly tongue in cheek, and throughout the trial, I have used the same phraseology in my heading. In fact, in Exhibit 14, which is Mr.

Green’s typed version of what transpired at the Bush residence (more about this exhibit follows), he titled it, “Home Invasion: My Version.” [ 77 ] I pause here to comment as well that I concluded that Professor Metz is a very sensitive person, perhaps even hyper-sensitive. I found it to be an over-statement to call this an attempted home invasion (as he maintained in his testimony before the court) or even an “attack” on the Bush residence. [ 78 ] Professor Bush testified that he received a call at home from Mr. Green. He was concerned that Mr. Green was contacting him via an unlisted number.

He felt it was inappropriate that Mr. Green, who was no longer a student at the university and because of ongoing issues with the university, would contact him at home. He thought it was best that they did not talk. He testified that he had never been called at home by a student before. [ 79 ] When questioned by Mr. Green, Professor Bush agreed that in the days prior to that day, his wife had expressed some concern because Mr. Green had accessed Mrs. Bush’ LinkedIn page. He was also concerned that in recent days, Mr. Green had shown up at his church when Professor Bush was there for choir practice.

He later learned that Mr. Green was there to volunteer at a math club but the math club had finished at 4:30 pm and Mr .Green was there at 8:30 pm. [ 80 ] Professor Bush said he expressed to Mr. Green in the telephone call, in no uncertain terms, that he did not want to talk to Mr. Green, that he had no business knowing his unpublished phone number. He testified he told him he did not want to deal with Mr. Green in any way, shape or form, and that if he wanted to contact him, it should be through the university. He then hung up on Mr. Green.

And went downstairs in his residence. [ 81 ] A short time later, he came up to see his wife shaking, white and upset. She told him Marty Green had been to the door, tried to give her some papers for Professor Bush and that when she tried to close the door, Mr. Green pushed on the door and would not let her close it. He testified that his wife was very upset, so he tried to calm her down. They then called 911. The police attended. [ 82 ] Mr. Bush testified that he believed it was about 10 minutes between the phone call and when he went upstairs to find out from his wife that Mr. Green had come to the door.

He estimated that it took him 10 minutes to calm his wife down before they called 911. [ 83 ] Mr. Green filed as Exhibits 15 his phone records. These records reveal that he placed a call to Professor Bush at 17:03. His service provider charges him for one minute for every portion of a minute that a call is connected. The phone record indicates that he was billed for two minutes. He testified that this means the call could have lasted seconds or could have lasted as long as two minutes.

He filed as Exhibit 16 Mr. Bush’s call to 911 which shows that call was received at 17:07:10. [ 84 ] This time period is obviously inconsistent with Mr. Bush’s evidence. I find that Mr. Bush was not accurate in his time estimates. This inaccuracy did not cause me to disbelieve Mr. Bush or question his credibility. I accept that his estimates on time were not reliable. This is to be expected when an unexpected, upsetting, short-lived incident has occurred. [ 85 ] There was cross-examination about inconsistencies between what Mr.

Bush reported to Vice President Besner, Professor Metz and Lisa McGuifford and affidavits filed in other proceedings. There was repeated questioning, suggesting a significant difference between preventing the door from being closed and trying to force the door open. There was a discrepancy pointed out between whether Professor Bush heard the door bell downstairs or not and whether there was a doorbell downstairs. I concluded that none of these alleged inconsistencies were significant. They are really differences in perception and shortcomings in recollection.

Professor Bush was of course not present for what transpired at the door, so how he reported what happened at the door is not that important. [ 86 ] Mrs. Heather Bush testified that she was at her home and in the room when her husband received a call from Mr. Green. She heard her husband say that it was inappropriate for him to call our house and that if he wanted to talk to him, he should contact his lawyer. She testified her husband then went downstairs and the doorbell rang. She answered the door and a male whom she did not know asked to speak to her husband. She had never seen Mr. Green before.

She asked, “Who are you?” He said he was Martin Green and stepped very close to her. She told Mr. Green that her husband had just told him that he did not want to talk to him and moved to shut the door. Mr. Green had a piece of paper in his hand and said he was there to give him paper. She testified she thought he meant a term paper but then thought, ‘ I do not care what kind of paper it is, my husband just told him he does not want to see him.’ [ 87 ] She tried to push the door shut but Mr. Green pushed back against the door and a pushing match started.

She said she became very scared and was concerned about what his purpose was and pushed as hard as she could. The door finally shut with Mr. Green’s hand in the door, he pulled it out and then she was able to shut the door and lock it. She guessed that the pushing match lasted about a minute. [ 88 ] It is clear that Mrs. Bush’s estimate as to time frames is not accurate. For the same reasons, as noted above in relation to Professor Bush’s testimony, this did not cause me concern for her credibility.

I do not believe she is accurate on her estimate that she was pushing at the door for one minute given the evidence of Mr. Green and Exhibits 15 and 16. I accept that the incident was very upsetting to her and it would have felt like a long time to her. It was evident from Mrs. Bush and Professor Bush’s demeanor on the stand that they are hostile to Mr. Green. This is not surprising given that he is now suing them for defamation. While I listened carefully to the questions put to Mrs. Bush, I did not see significant inconsistencies in her evidence that caused me to question her credibility.

There were some inconsistencies which naturally occur given the passage of time and the unexpected and short duration of the incident at the door. [ 89 ] Mr. Green suggested to Mrs. Bush a few times that both she and her husband knew that Martin Green was at the door after the phone call and that her husband had asked her to get rid of him and not to take any papers. She denied this. [ 90 ] Mr.

Green testified on his own behalf. [ 91 ] Ordinarily an accused would not be able to provide to the court a previous written statement in order to show that it was consistent with his viva voce testimony because it is self-serving. The record will show that numerous witnesses had been subpoenaed by Mr. Green and they were called before he testified. The witnesses were called in that order to try to accommodate other commitments the witnesses had. Mr. Green was very concerned that I not reduce the weight of his testimony because these witnesses had testified before he did.

At the end of September 25 th he tried to file his own written version with the court. However, he had given it to a person sitting in the audience who had left with it. On December 3, 2013, when he began to testify, he began to read this written version into the record as his testimony. I allowed him to file this written version with the court as Exhibit 14. I have considered this statement the same as his viva voce testimony. [ 92 ] Mr. Green testified that he conducted his own investigation to find Professor Bush’s address. He then went to the address and phoned.

He confirms that Professor Bush was outraged that he had called on his personal line. He confirms that Professor Bush told him if he had anything to say to him, he should contact his lawyer. He confirms that Mr. Bush then hung up on him. When he appeared outside the door, he was only trying to confirm that he in fact had the correct address for Professor Bush. He approached the door. He identified himself to Mrs. Bush and detailed the following in his testimony: Now I, I say in that written description [Exhibit 14] that I remember her abruptly move to close the door and putting my hand up to hold the door steady.

And I realized after that, that I don't remember that. I remember -- what I do remember distinctly is that there was a conversation that we were sort of eyeing, that she was eyeing me ambiguously; that there was some hesitancy, or suspicion, or some uncertainty as to what she would be doing. And the next thing that I remember, the next thing that I remember is that I was stopping the door from closing, and I was thinking this is not, this is not what I came in here for. I didn't come to be involved in a confrontation over closing the door.

Over sort of -- I didn't come here to become involved in a physical struggle. I remember that, but I don't remember getting from A to B. I just remember being in a bit of a Mexican stand-off with her as to what we're going to do next. And the next memory that I have is that I was stopping her from closing the door, and thinking -- I remember distinctly thinking, well, this isn't what I came here for. And that having realized that thought, I remember that I didn't immediately pull back and get out of the confrontation. I said -- well, I remember the two thoughts; have I accomplished my goal?

Have I identified the house? And I think, well, it's not positive, but I'm pretty sure I can go with it. And, second, should I just drop the papers and say that's effective service, and thinking, I don't think that's service, so well, we're just gonna, we're just gonna walk away from the situation. And that's, that's my recollection. I've estimated that I might have been in a position of holding the door for one or two seconds. And if Mr. Grieves wants to press me on cross-examination and say, well, could it have been four or five seconds? I suppose it's possible. It certainly wasn't 10 seconds. I

would, I would put five seconds. That's an unrealistic upper bound, like a -- I would say one or two seconds is my best estimate. And that's my version of what happened. (December 4, 2013 Transcript, page 102) [ 93 ] I concluded from Mr. Green’s testimony that he is an honest witness who was doing his best to provide, to the best of his ability an honest and candid account of what happened at the door. His honesty is reflected in his candid evidence about differences between his recollection on the stand and the written version of his evidence.

I also concluded that his version of what happened is essentially consistent with that of Professor Bush and Mrs. Bush. [ 94 ] The most significant difference between the testimony of Mr. Green and that of the Bush’s is one of perception. Mr. Green’s perception is that the Bush’s were trying to avoid service. But there is no evidence that the Bush’s had any idea or even any advance information that Mr. Green had a legal process he was trying to serve on them. It is curious to me that Mr.

Green chose to attempt to serve the papers himself, when at the outset his only intent was to identify the Bush address so that he could save himself $90 with the process server. [ 95 ] It is also curious when one considers that Mr. Green had previously filed a legal process against professors in the English department and not sought to serve them personally on his own. This is referred to in Exhibit 7, where an email from Paula Hossack, Governance Assistant, dated January 23, 2013, noted that a previous claim against Education Professors was served at the Campus Security Office. [ 96 ] In that same email, Ms.

Hossack, offered to make arrangements to have Professor Bush present at the security office as they understood Mr. Green had filed a claim against Professor Bush and was seeking to effect personal service. Mr. Green responded that he would take advantage of that offer only if Professor Bush withdrew the complaint that lead to the trespassing order. Otherwise, he would resume his efforts to effect personal service. This response is concerning given that by that time it would have been abundantly clear to Mr. Green that Professor Bush did not want to have any contact with him.

It is reasonable to take that email to be of a threatening nature. [ 97 ] I am satisfied that it was and is highly unusual for a student to go to the personal residence of an instructor. I am satisfied that given the history of Mr. Green’s involvement with the university, his attending at the Bush residence was not welcome and that Professor Bush clearly communicated this to Mr. Green. I am satisfied that when Mr. Green began to push against the door, preventing Mrs. Bush from closing it, that would have been a very frightening event for Mrs. Bush. I am satisfied that the pushing at the door by Mr.

Green was not momentary and but lasted long enough to engender this legitimate and honest fear in Mrs. Bush. I am satisfied that this incident, given the context of the reasons for the first barring notice which I have accepted, provided a reasonable, not arbitrary or malicious foundation for the second barring notice. Ongoing email harassment between the two barring notices [ 98 ] Vice President Neil Besner testified he was notified shortly after Mr. Green had gone to the Bush’s residence. The emails sent by Mr. Besner refer to the fact that Mr. Bush was upset and next steps should be considered. Mr.

Grainger was copied on that email. Mr. Besner testified that he met with a number of people the following Monday. He testified he was in favour of barring Mr. Green from campus. [ 99 ] While he could not recall the date, he agreed that it could have been December 6 th that he met with Professor Metz and others who detailed abusive behaviour towards Metz who felt threatened, harassed and afraid of Mr. Green. Professor Metz had reported that Mr. Green made intimidating comments on his blog about Professor Metz. Mr. Besner recalled that it was a repeated pattern of behaviour. Mr.

Besner was not able to provide or recall specific details about the pattern of behavior that was threatening or abusive. Mr. Besner testified that he was satisfied that Professor Metz’ fears were not irrational and that he feared Mr. Green both in the classroom and beyond. [ 100 ] A few comments about Mr. Besner’s demeanor on the stand. Mr. Green argued that it was like pulling teeth to get Mr. Besner to disclose the reasons for the second barring notice. I agree that Mr. Besner was hostile and it was clear that he does not like Mr. Green. He came across as being overly semantic.

For example, he seemed to draw a distinction between a trespassing order and a barring notice. I certainly understood Mr. Green when he referred to a trespassing order to be talking about the barring notice. It was also clear to me that Mr. Besner did not have a clear recollection of details surrounding this event. I concluded that because he had been subpoenaed by Mr. Green he was not entirely sure why he was in court and had not reviewing any emails or notes prior to attending court.

I concluded that some of his confusion on the stand as to the reason for the barring notice was an honest confusion between whether he was being asked about the second or first barring notice. Ultimately, I concluded that Mr. Besner provided the court with his honest recollection of events, despite his feelings for Mr. Green. [ 101 ] Mr. Besner testified that his “business is to make sure the campus is safe. If I have a professor who feels threatened, I need to act to make sure that he ceases to feel threatened.” (September 3, 2013 Transcript, p. 205) [ 102 ] Mr.

Green filed with the Court Exhibits 8, 9 and 10 which are very regular correspondence between Mr. Green and the Registrar, copying a list of other university personnel regarding the return of property and grade appeals. I agree with Mr. Green that these do not contain any threats of violence. They do contain threats of legal action – December 6, 2012 email, “I will be forced to take further action to enforce my rights.” The email communications between the two barring notice of themselves would not have been a sufficient basis to bar Mr.

Green as I agree with him, he was just asserting his rights to grade appeals, having assignments marked and personal property returned. But the full picture contains much more than just the emails exchanged between the two barring notices. Conclusion regarding the second barring notice [ 103 ] Was it reasonable for the university to bar Mr. Green the second time? I would not have been satisfied based on allegations of ongoing email harassment that the second barring notice was reasonable.

The Exhibits 8, 9 and 10 do not support a suggestion that the emails were harassing other than by their quantity and adversarial nature. However, I am satisfied that when Mr. Green attended the

Bush’s personal residence, it caused a real fear in them. [104] Since Professor Metz had previously witnessed the throat slashing gesture, when he learned that that Mr. Green had now attendedto the Bush residence and pushed on the door while Mrs. Bush was pushing to close the door, it re-inforced a a reasonable and honestfear that Professor Metz had of Mr. Green. [105] I am satisfied that the university was not acting maliciously or arbitrarily when they barred Mr. Green both the first and secondtime.

They were acting out of a legitimate and real desire to create an environment where students and faculty felt safe. The universityreacted reasonably to Professor Metz and Bush who had reasonable basis to fear Mr. Green based on behaviour which they foundaggressive and unpredictable. Since they had received multiple complaints, from both students and faculty, the University was justifiedin serving Mr. Green with the barring notice. [106] I find that Mr.

Green breached that barring notice on February 7, 2013 by entering on the university’s property when he had beengiven notice that he was prohibited from going on to the property. The Offence of Mischief [107] Mr. Green is charged with mischief on February 7, 2013, in Winnipeg on the basis that he did unlawfully and wilfully, “obstruct,interrupt or interfere with the lawful use, enjoyment or operation of property of University of Winnipeg”. [108] The Crown argues that the interruption or interference was established by the evidence of Martin Grainger. Martin Graingertestified that as a result of Mr.

Green repeatedly attending the university, four additional security guards were hired to watch all of themain entrance doors. They were present for about 10 days – from January 29 until February 8, 2013. [109] There was one door to the Faculty of Education which had previously been open to students and the public which was locked –this allowed entry only through a Spence Street entrance – where a security guard was monitoring the entrance. The offices of ProfessorMetz and Bush were altered so that they could lock their classroom and office doors.

Security guards also monitored the entrance ofProfessor Metz and Professor Bush’s classrooms. After class started, students would have to knock in order to gain entrance to thelocked classroom. The Crown argues that the hiring of the additional security staff and the locking of doors that had previously beenaccessible because of Mr. Green’s insistence on coming on to the university property interfered with student and faculty’s legitimate useand enjoyment of university property. [110] The Crown filed R. v. Tan 1992 CarswellBC 758 and R. v.

Maddeaux 1997 CarswellOnt 1119 with the court to support itsposition. [111] In Maddeaux, the court was dealing with a complaint from a neighbor that the accused’s loud music interfered with thecomplainant’s enjoyment of her own property. The court held that enjoyment should be given its ordinary meaning and not beconstrained by a meaning which required some interference with a person’s lawful possession of property. The Court of Appealconfirmed the conviction entered by the

summary conviction appeal judge. The Court adopted the ruling of the dissenting judge in R. c.Drapeau: “The offence obviously requires the Crown call evidence of the wilful actions of the accused and his guilty mind (mens rea).(at paragraph 10) [112] The Court noted that the word operation would normally be used in connection with commercial or institutional property (atparagraph 12). In this case, the operation of the university is alleged to have been interfered with by Mr.

Green. [113] In Tan, the British Columbia Court of Appeal, had occasion to consider whether the act of the accused in securing herself to theanchor chain of a ship as a means to alert the public that the nuclear warheads on board were a serious accident threat.

The Court heldthat the accused was guilty of mischief even though the ship had remained at anchor throughout the incident and there was no actualprevention of the anchor from being raised. [114] The Court explained that the mental element, required by section 429(1) of the Criminal Code: “there must be knowledge by theaccused that his conduct will probably cause the occurrence of the event complained of – in this case, obstruction to or interference withthe lawful use and enjoyment by the owner, and recklessness as to whether the event occurs.” (at paragraph 28, quoting from R. v.Wendel (1966), (BC CA), 50 C.R. 37 (B.C.C.A.) [115] I accept that the normal operation of the university was interfered with by the addition of more security personnel and locking ofdoors that had previously been unlocked and accessible to the public, students and faculty.

Thus the actus reus of the offence is madeout. [116] Mr. Green argues that while he attended the university in defiance of the trespassing order, he did not cause any problem while hewas there on February 7, 2013. The evidence of Akhil Jose, a contract security officer who worked at the university for only a few days,testified that he saw Mr. Green in the cafeteria. He was giving some papers to students there. He did not see any untoward reactionsfrom the students who just seemed to be taking the papers and reading them. Mr. Jose said he called Mr.

Green to come to him, told himthat he was not supposed to be there and then the two walked peacefully to the security office. [117] The evidence of Chris Rarick, a supervising security officer, in cross-examination, was to agree there was no trouble making orhostility displayed by Mr. Green when he attended the university on any of the earlier incidents of trespassing contrary to the PettyTrespass Act. [118] There is no evidence that Mr. Green knew or was informed about the added security or the locking of doors. The testimony from

Mr. Green and Exhibit 7, which includes his email of January 25 advising of his intention to be “peaceful and non-disruptive” show that he did not intend to interfere with the enjoyment or operation of the university. While Mr. Grainger advised Mr. Green via email on February 4 that if he continued to attend the university in defiance of the barring notice, a charge of mischief would be laid, he was not advised on what basis the criminal charge would be laid. [ 119 ] I find that while the actus reus of the offence of mischief is made out in this case, the mens rea is not.

Not every breach of the Petty Trespass Act , even intentional repeated breaches of that Act necessarily result in a criminal mischief charge. I accept Mr. Green’s evidence that he did not attend the Bush residence for the purpose of breaking in or even forcefully entering that property. Other than to be told it was the fact that he had attended to a professor’s residence which had resulted in the police being called, the university did not provide details to Mr. Green about the impact his actions had on the Bushs. These facts impact what knowledge Mr.

Green would have about the university’s reaction to lock doors and the hiring of additional security. As described above, the mental element of the offence of mischief requires wilful, knowledgeable interference with the operation of the university. Given the evidence I accept from Mr. Green, I do not find that it was predictable to him, and he was not reckless as to the consequence of added security and locked doors. As a result, I find him not guilty of the mischief. Abuse of Process [ 120 ] Mr.

Green has asked the Court to find that it was an abuse of process in having the charges “ramped up” to a criminal charge. The criminal charges of mischief and forcible entry that were initially laid resulted in Mr. Green being detained in custody for seven days until he agreed to not contact various employees at the University of Winnipeg and not attend the university’s property. [ 121 ] The latest decision from the Supreme Court of Canada on abuse of process is R. v. Anderson 2014 SCC 41 . The significant principles as highlighted by the Supreme Court that apply to this case are as follows: 1.

The exercise of prosecutorial discretion is reviewable only for abuse of process (para. 36). 2. The fundamental importance of prosecutorial discretion is not to protect individual Crown attorneys but to further the public interest “by enabling prosecutors to make discretionary decisions in fulfillment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as ‘ministers of justice’” (para. 37). 3. Whether to proceed with a criminal charge is a matter of prosecutorial discretion. (para. 40) 4.

The exercise of “prosecutorial discretion must not be subjected to routine second guessing by the court.” (para. 46) and is entitled to considerable deference. (para. 48). 5. Abuse of process refers to Crown conduct which is “egregious and seriously compromises trial fairness and/or the integrity of the justice system.” (para. 50) 6. The burden of proof for establishing abuse of process lies on the claimant who must prove it on a balance of probabilities (para. 52). 7. It is not sufficient to launch an inquiry into abuse of process based only on a bare allegation (para. 53). [ 122 ] In submissions, Mr.

Green argued that while Mr. Grainger asked the police to consider laying the charge of mischief based on the advice of Mr. Grieves, also the prosecuting Crown in the trial, Mr. Grieves should have known that the university personnel were lying. In his submission he argued Crown Counsel should not have accepted at face value the statements of Mr. and Mrs. Bush. I have already found above, that while what occurred at the Bush home was not a home invasion, it was conduct which was sufficiently concerning that it justified their fear of Mr. Green. [ 123 ] The other evidence on this issue is that of Mr. Grainger. Mr.

Green suggested to Mr. Grainger that he recommended laying the charge of mischief because it would save the university $1000 a day in added security costs. Mr. Grainger answered: “The cost is not my main concern. My, my main concern is the safety, security of the students, faculty and staff at the University of Winnipeg.” Mr. Green then pointed out that he had undertaken to be peaceful and secure, and could he not just be trusted on his word? Mr.

Grainger responded: ... fine, sir, but the thing is that, that people have different perceptions... and they knowing that you are on campus, feel, feel unsafe, so I have to make sure they feel safe, so that’s why you’re barred from the campus. (September 25, 2013 Volume 2 at p. 37). [ 124 ] When Mr. Green again suggested that the mischief charge was laid for the purpose of keeping Mr. Green in jail and save $1000 a day Mr.

Grainger repeated that his concern was not the cost but the safety and security of the students, faculty and staff, he added “I have to weigh all options if you continue to refuse to obey the barring order, then I have to say what’s my next step.” (September 25, 2013 Transcript, page 38) [ 125 ] I accept the evidence of Mr. Grainger as accurately reflecting the purpose of pursuing the charge of mischief – that is that students and staff were afraid of Mr. Green and therefore, he was taking steps to keep Mr. Green off the university campus.

There is no evidence of a malicious or improper purpose in pursuing that charge. The onus is on Mr. Green to establish an abuse of process and that is a significant hurdle to overcome. He relies on a bare assertion. I am satisfied there was not an abuse of process because the charge of mischief was laid and prosecuted. Charter Arguments [ 126 ] In his concluding submission, Mr. Green urged the Court to rely only on the common law and that he would rather not rely on the Charter , as he hoped that the court would find that the university had acted maliciously.

I have found the university was not acting maliciously.

[ 127 ] Mr. Green then argued that in a worst case scenario, the Charter was an “escape hatch” that might still give him a defence. He mentioned

section 7 and freedom of speech (which would be pursuant to

section 2 of the Charter ) as he was only trying to find witnesses to the ASL incident when he was on campus on February 7, 2013. [ 128 ] The onus is on Mr. Green to establish a Charter breach. I am not satisfied that he has established any breach. Given that this was not the focus of the trial or submissions, I will briefly point out that the cases filed by Mr. Green do not assist him. [ 129 ] Mr. Green also relied on Regina v. S.A . [2012] ABQB 311. I should note that at the time that argument was made in this case on June 3, 2014, the Court of Appeal decision had not yet been rendered.

On June 10, 2014, the Alberta Court of Appeal released its judgment on the appeal. The Court of Appeal upheld the Queen’s Bench decision which found that a ban pursuant to Alberta’s Petty Trespass Act did not engage the right to liberty pursuant to

section 7 of the Charter . In those cases, the fact scenario related to a ban of a public transit system by a youth. The argument that public transit is necessary for an impoverished young person is much stronger than the liberty interest in attending on to a university campus where you have been expelled from an educational program. These cases do not help establish a

section 7 breach for Mr. Green. [ 130 ] Mr. Green also provided the court with R. v. Whatcott 2002 SKQB 399 and R. v. Whatcott 2011 ABPC 336 . In both cases, Mr. Whatcott had been banned from a university for distributing graphic pamphlets in protest against abortions. Just like Cote J of the Alberta Court of Appeal did in the S.A. decision (at paragraph 103), I distinguish these cases from the facts before this court. In those cases, the only activity at issue was the peaceful handing out of tickets both as the reason for the original barring notice and the subsequent allegations of breach.

I have found in the case of Mr. Green that the university acted in both cases on a reasonable basis to protect faculty and students and protect a safe learning environment. Conclusion [ 131 ] Staff of the University of Winnipeg, acted reasonably and not arbitrarily or maliciously when they banned Mr. Green from the University campus. Both barring notices were motivated by honest concerns for the safety of students and staff. In those circumstances, the barring notices were legal and binding. I find Mr. Green guilty of the Petty Trespass Act charge.

I find him not guilty of the mischief charge because the mental element has not been proven. It has not been proven that he wilfully or knowingly interfered with the operation of the university impeding others enjoyment of that property. _________________________ KRAHN P.J.