The reasons behind Jamie Kastner's "THERE ARE NO FAKES" documentary (Part 2 of 7)

"LOSING IN CANADA'S COURT SYSTEM?... NO WORRIES, MAKE A DOCUMENTARY!

"More and more individuals – and companies – are augmenting, even bypassing entirely, traditional legal process hoping to get a more favorable hearing in public." ~ Bruce Schneier, 2013



Illustration by Spirit Walker

"Court is one of those places where facts still matter."
~ Judge Amy Berman Jackson, 2019



Jamie Kastner is a Toronto-based filmmaker and writer whose work has received international acclaim. His recently completed The Skyjacker's Tale is a critically acclaimed feature doc which premiered at TIFF'16, is broadcast on Netflix, Super Channel, Canal D and ZDF/Arte, distributed by Strand Releasing in the US and C7 INTL internationally. The Secret Disco Revolution premiered at TIFF'12 and played at festivals around the world. Kike Like Me, Kastner's first feature-length documentary premiered as a Special Presentation at Hot Docs where it became the top-selling and most talked-about film of the festival. 

Source: - IMDb Mini Biography By: Jamie Kastner 

The below presented is the court citation for the court case Hearn v. Maslak-McLeod Gallery Inc. and refers to the DISMISSED motion by the Plaintiff to allow Mr. Jamie Kastner and his film crew to videotape the trial... 

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SUPERIOR COURT OF JUSTICE - ONTARIO

RE:               Kevin Hearn, Plaintiff

– AND –

Estate of Joseph Bertram McLeod, Deceased and Maslak-McLeod Gallery Inc., Defendants

– AND –

White Distribution Limited, 2439381 Ontario Inc., and Nathaniel Big Canoe, Intervenors

BEFORE:      Justice E.M. Morgan

COUNSEL:   Jonathan Sommer, for the Plaintiff

                        Michael Pinacci, for the Intervenors

                        Jamie Kastner, in person

HEARD:         December 4, 2017

MOTION TO vIDEOTAPE THE TRIAL

[1] At the outset of trial, the Plaintiff has brought a motion to permit filmmaker Jamie Kastner to videotape the trial. Mr. Kastner is a documentary filmmaker and is in the process of producing an educational film about the controversies surrounding the art works of the renowned First Nations painter, Norval Morrisseau. This trial concerns the authenticity of one of Mr. Morrisseau’s paintings.

[2] Mr. Kastner advises that his film has been commissioned by TV Ontario, and that it will present issues in an even-handed, non-inflamatory or adversarial way. He has a demonstrated background in documentary movies and is a credible educational filmmaker. Counsel for the Plaintiff and counsel for the Intervenors both consent to the proceedings being filmed, on the understanding that any given witness will have the choice to opt out of having their testimony filmed.

[3] Despite the consent of both sides and the qualifications of the filmmaker, this motion causes me substantial concern.

[4] In the first place, there is no authority for it. Mr. Sommer, on behalf of the Plaintiff, points to section 136(3)(c) of the Courts of Justice Act as providing a statutory basis for the motion. Section 136 does not exactly authorize the filming of a trial. Indeed, quite the opposite; it prohibits the filming of a court proceeding. Subsection 3(c), of section 136 provides a small caveat whereby a judge can order an exception to the usual rule banning filming of a court proceeding if done for educational purposes. However, counsel can point to no case or instance where this has actually been done.

[5] The procedure described in s. 136(3)(c), in other words, is rarified at best. I can understand that it provides a narrow exception to allow the filming of legal argument in an appeal case such as one sees late at night on cable television, as appellate argument by its nature engages the public and does not involve witness testimony. I can also understand that in enacting this section of the Courts of Justice Act the legislature might have provided a small opening to film discrete procedures to be used in educating law students. There is nothing like viewing an effective cross-examination to train young lawyers in the methods underlying an effective cross-examination. But it is more difficult for me to view s. 136(3)(c) as authorizing the inclusion of video from the trial itself in a documentary film on the substantive subject matter of the trial. I simply do not know how that would impact on the dynamics of the trial, or whether it would rebound to the detriment of any one party. Absent some precedent, I am loathe to go down that road.

[6] There is another concern which relates more particularly to this trial. I have already had several motions, including one contempt of court motion brought by the Plaintiff against various parties (not the Defendant or the Intervenors here) that are engaged in advocacy about Morrisseau art, in which far reaching allegations were made about misconduct by those parties. Counsel for the Plaintiff has pointed me to a blog dealing with allegations and counter-allegations regarding the authenticity of Morrisseau paintings in which seemingly defamatory statements are made about all who engage in this advocacy – including Plaintiff’s counsel himself as well as the expert witness that the Plaintiff proposes to call.

[7] Indeed, Plaintiff’s counsel has even complained about surreptitious photographing of him in the courthouse, and the intimidating effect of such photography. While the proposed videotaping of the trial would be out in the open rather than hidden, and any given witness could opt not to be filmed, the filming of witnesses under this atmosphere could well have an adverse effect on the proceedings and the testimony. I could imagine witnesses feeling that they were somehow obliged to cooperate in the filming of their testimony in order not to undermine the educational value of the film, but then tempering their testimony lest viewers of the film post it on the internet and blog about them in unflattering ways.

[8] Although as indicated there is little precedent in this regard, I am certain that I am not alone in thinking this way about witnesses and the impact of filming. In Dagenais v Canadia Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 SCR 835, 883, the Supreme Court of Canada took note of the anxiety that people naturally feel when called to testify in court. In considering the issue of publication bans on witness testimony or identity, the court noted that removal of publicity will “maximize the chances that witnesses will testify because they will not be fearful of the consequences of publicity.” Furthermore, in Canadian Broadcasting Corporation v A.G. Canada, 2011 SCC 2 (CanLII), [2011] 1 SCR 19, at para 83, the Supreme Court of Canada considered the prospect of audio broadcasts of trial proceedings, and pointed out that, “To broadcast the audio recordings of a hearing would be to alter the forum in which the testimony is given.” The Court went on to state emphatically that, “A person, whether a party or a witness, who is summoned to testify in court must address his or her testimony to the court, in the courtroom, not to the media’s audience outside the room.”

[9] In view of the Supreme Court’s skepticism about other forms of media presence in the courtroom, and in view of the narrowness of the exception contained in section 136(3)(c) of the Courts of Justice Act, I am not prepared to authorize the videotaping of the trial of this matter. The impact on witnesses and on the fairness of the trial is too unpredictable.

[10] The Plaintiff’s motion to authorize the videotaping of the trial is dismissed. As the Intervenors, who are the Plaintiff’s only adversaries in this otherwise undefended trial, consented to the Plaintiff’s motion, there will be no costs of this motion for or against any party. 

Signed: Justice Morgan

Date: December 4, 2017

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As per the above court document (see Paragraph 1) it is clearly presented that Mr. Jamie Kastner's intention was to "produce an educational film about controversies surrounding the works of the renowned First Nations painter, Norval Morrisseau" and that "this trial concerns the authenticity of THE ONLY one of Mr. Morrisseau's paintings."

Also, from the same document it is clear that Mr. Kastner advised that "his film had been commissioned by TV Ontario, and that it will present issues in an even-handed, non-inflamatory or adversarial way." (see Paragraph 2)

As per below presented interview it is clearly presented that "an educational film about controversies surrounding the works of the renowned First Nations painter, Norval Morrisseau" all of a sudden became "the story about the largest art fraud scam in Canadian History"… 



Jamie Kastner at Hot Docs 2019 Press Conference
by firstweekendclub Published on Mar 25, 2019


It is obvious that Mr. Jame Kastner's intentions are not at all to present "an educational film that it will present issues in an even-handed, non-inflamatory or adversarial way" as he was siding opinions of Mr. Kevin Hearn who was Mr. Kastner's high school buddy.

Also, as per information written by Shari Narine, Windspeaker.com contributor:

"The nearly two-hour long documentary was sparked by the court case initiated by Kastner’s high school buddy and Barenaked Ladies member Kevin Hearn. Hearn was awaiting his court date where evidence was going to be presented to determine that Spirit Energy of Mother Earth, the painting he purchased from the Maslak McLeod Gallery, was a fake Morrisseau."
. . .
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"Kastner admits there were aspects of the Morrisseau story that he chose to leave out, including that the fraud ring the documentary outlines was investigated by the Thunder Bay police, but charges were never laid, and that another court case challenging the authenticity of another Morrisseau painting was unsuccessful.

“You’ve just got to make painful choices to get the essence of the story in there and you hope you make the right ones,” he said."

~ excerpts from online article "Violence, sexual abuse and rampant drug use shocks in Morrisseau art fraud documentary" published on March 27th, 2019.
  

TURNING BLIND EYES BY MR. JAMIE KASTNER?
/Turning a blind eye would be a bad thing, turning both eyes blind is even worse!/

How convenient is this for Mr. Jamie Kastner to exclude three years of investigation by the Royal Canadian Mounted Police and Thunder Bay Police Service and court findings in "another court case challenging the authenticity of another Morrisseau painting" (Hatfield vs. Child SC-09-087264-0000)… all to accommodate his high school buddy, who wrote music for "THERE ARE NO FAKES" documentary?


In my opinion Mr. Kastner's intentions are not to "present issues in an even-handed, non-inflamatory or adversarial way" but quite contrary, to present side of the story which has been presenting in Canadian media for the past eighteen years by number of individuals whose intent is to control Norval Morrisseau Art Market.

I am looking forward seeing this movie (as soon as I have the opportunity) and I am curious to see which side of "the story about the largest art fraud scam in Canadian History" will be presented by Mr. Jamie Kastner. 

Kevin Hearn and his legal counsel Jonathan Sommer being filmed by Jamie Kastner for the upcoming "THERE ARE NO FAKES" documentary at Superior Court in Toronto, under the watchful eye of Ritchie Sinclair
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"Finally, in Hatfield v. Child, 2013 ONSC 7801 (CanLII), a plaintiff represented by Hearn’s present counsel alleged that a Morrisseau painting she had purchased was not an authentic Morrisseau and that the black brush signature purporting to be Norval Morrisseau’s on the verso of the painting was a forgery. The court rejected the evidence of none other than Ritchie Sinclair, who was presented as a witness on behalf of the plaintiff in that case. The trial court, as upheld on appeal to the Divisional Court, accepted that the painting was an authentic Morrisseau painting. In the process of doing so, the Court found that Sinclair’s views on the Morrisseau painting in issue there were “unsupported and unreliable” [para 18], while it found that Joseph McLeod, who had done an appraisal of the painting in issue, was “a credible witness”: Ibid., para 26."

~ Justice Edward M. Morgan, May 24, 2018 (Paragraph 36); Kevin Hearn Vs. Joseph B. McLeod and Maslak McLeod Gallery Inc. /Court File No. CV-12-455650/

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BLOG MASTER'S COMMENTS: 

After eighteen years since National Post article by Murray Whyte "Morrisseau fakes alleged" /National Post, May 18th, 2001/, and three years of investigation by the Royal Canadian Mounted Police and Thunder Bay Police Service and after eight court cases over the period of twelve years (see reference posts listed below) nobody has ever been successful in pointing out one case where it was proven that someone made, sold, distributed or even marketed one "fake" Norval Morrisseau painting.
 
In each of these court cases Mr. Joseph McLeod (1928-2017) of Maslak McLeod Gallery was referenced to or his appraisals were submitted and accounted for:

1.1 - Otavnik vs. Vadas SC 07-51428-00,
2.1 - Michael Moniz vs. CTV Globemedia Publishing Inc.,
3.1 - Drs. Browne and Witmer vs. Bearclaw Gallery,
4.1 - Otavnik vs. Sinclair SC 09-00082782-0000,
4.2 - CASE SUMMARY: Otavnik vs. Sinclair SC 09-00082782-0000,
5.1 - Hatfield vs. Child SC-09-087264-0000 &
6.1 - Kinsman Robinson Galleries vs. Ugo Matulic CV-10-417123,
7.1 - James White vs. Ritchie Sinclair SC-10-109226-00
        /Formerly CV-08-00366828*/.
8.1 - Kevin Hearn Vs. Joseph B. McLeod and Maslak McLeod Gallery Inc. /Court File No. CV-12-455650/

* - A claim when Joseph McLeod (c.o.b. Maslak McLeod Gallery), James White, White Distribution Limited, Donna Child, Artworld Inc. (c.o.b. Artworld of Sherway), Sun Nam Kim ("Sunny Kim"), Gallery Sunami Inc.(c.o.b. Gallery Sunami), Jackie Bugera and Bugera Holdings Ltd.(c.o.b. Bearclaw Gallery) sued Ritchie Sinclair (Ref.: click HERE).

Note: In January 2011, days before the case was to be officially declared abandoned by the Superior Court, James White reactivated the case. It appears, however, that White was acting alone. On August 5th, 2015 Deputy Judge CW Kilian Found Ritchie Sinclair Guilty & fined him $25,000 plus costs... (click HERE for more information). 

~ In all of the above listed court cases Forensic science have been used proving that paintings in question were signed by Norval Morrisseau and nobody else (click HERE).

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>>> In a court judgement Hatfield vs. Artworld of Sherway /Court File No. SC-09-087264-0000/ Judge Paul J. Martial stated the following:

"The Court finds that there is overwhelming evidence that Norval Morrisseau signed paintings in black brush paint.” (Judgment by Judge Paul J Martial: March 25th, 2013 - Page 34)

This important finding by Judge Paul J Martial was completely ignored by member of the Norval Morrisseau Heritage Society, Ms. Carmen Robertson in Kevin Hearn Vs. Joseph B. McLeod and Maslak McLeod Gallery Inc. /Court File No. CV-12-455650/

This court finding was also purposely avoided by Jamie Kastner*, director of the 114 minute film “THERE ARE NO FAKES” which will be screened at the 2019 Hot Docs Canadian International Documentary Festival in Toronto on April 29^th& May 1^st 2019.

* - who is Kevin Hearn's 'high school buddy,' as noted by Shari Narine, Windspeaker.com Contributor

NOTE: Genuine Norval Morrisseau painting involved in this court case was also acquired from Randy Potter Estate Auctions and appraised by the late Mr. Joseph McLeod (1928-2017).