Case #606 - Appeal

DATE: October 10, 2012
PARTIES: University of Toronto v. A.L.


Hearing Date(s): September 18, 2012

Panel Members:
Mr. Ronald G. Slaght, Chair
Prof. Elizabeth Peter, Faculty Member

Mr. Graeme Norval, Faculty Panel Member
Chirag Variawa, Student Member


Appearances:
Ms. Lily Harmer, Assistant Discipline Counsel for the University
Mr. Glenroy Bastien for the Respondent, the Student


In Attendance:
The Student
Prof. Eleanor Irwin, Dean's Designate, UTSC

Ms. Natalie Ramthal, Coordinator, Appeals, Discipline and Faculty Grievances

Discipline Appeal Board – University appeal from sanction – request to set aside the penalty and impose a recommendation for expulsion – Board need grant little deference given its very broad powers – deference given on the issue of credibility did not apply in this case because the Student did not testify – the possibility of expulsion is a real deterrent effect – no extenuating circumstances to justify a lesser sentence than expulsion – concern that if expulsion was not the result in this case, it would be difficult to justify in any case – whether the Student had prior offences should be seen in combination with other factors – nothing to put context around the first offence in a mitigating sense – no remorse or explanation by the Student – guilty plea in its own terms was neutral or irrelevant – Board found it significant that Student continued his misconduct even after being warned by a potential employer – Board rejected the idea that because the act itself is the same on each occasion, they should be considered all as one – little weight on the psychiatrist evidence – the fact that the Student had accumulated enough credits to graduate was not a mitigating factor – Board differentiated the case from A.K.G. on the ground that the circumstances were different – deterrent effect and the harm occasioned to the University by the nature of the offence were the two most important sentencing principles in a serious case such as this – nothing in this case that could blunt or ameliorate the facts of the case or the need for consistency and uniformity in sentencing principles – Appeal allowed – recommendation for expulsion

Appeal by the University from a Tribunal decision in which the Student was found guilty of submitting falsified academic records to prospective employers on three different occasions, contrary to s. B.i.1(a) and s. B.i.3(a) of the Code, and sentenced to a five-year suspension. The University asked the Appeals Board to set the penalty aside and replace it with a recommendation that the Student be expelled. On the issue of deference, the Board stated that it had very broad powers which meant that it need grant little deference to the Trial Panel decision although it does give deference over credibility issues, where they arise in a trial setting and where the Trial Panel has the opportunity to observe the witnesses giving evidence. The Board stated that in this case, the Board did not have to take deference into account because the panel did not have the opportunity to observe the Student as he did not testify. Regarding the Panel’s concern that anonymity hurt the deterrent effect and there was no proven difference between the deterrent effect of a five-year suspension and that of a recommendation for expulsion, the Board agreed that anonymity blunted the deterrent effect but stated that the most serious penalty, in the most serious cases, was a real deterrent and it remained an important element in setting penalties in serious cases. The message conveyed that falsifying transcripts generally meant expulsion and not just suspension accomplished deterrence, a legitimate purpose of sentencing. Moreover, the Board found that in this case, there were no extenuating circumstances that would justify a lesser sentence and expressed a concern that if expulsion was not the result in this case, then it would be difficult to justify expulsion in any case. For example, the issue of whether the Student committed a prior offence was an element that had to be seen in combination with others such as whether he had shown remorse for a first offence, the nature and gravity of the offence, the circumstances of the first offence, and other extenuating circumstances that in combination could lead to a lighter penalty for a first offender. In this case, the Board found that there was nothing to put context around the first offence in a mitigating sense. The Student made no personal expression of remorse nor offered any explanation, and the Trial Panel and the Board were left completely in the dark without any explanation for his behaviour and conduct on the original actions, the subsequent denials, and the future prospects. Regarding the Student’s guilty plea, the Board noted that a guilty plea in its own terms was neutral or irrelevant in all respects and did not speak to any explanation or remorse for the facts. The Board also found it significant that the Student further submitted falsified academic records after being warned by a potential employer who spotted anomalies and contacted him. As for the Panel’s finding that the Student’s acts should be seen as one continuing offence rather than 10 offences that he had been charged with, the Board rejected the idea that because the act itself is the same on each occasion, they should be considered all as one. Thus, it was not a mitigating factor. Furthermore, the Board found that it was difficult to place much weight on the evidence given by the Student’s psychiatrist without any direct evidence from the Student himself. On the issue that the Student had accumulated sufficient credits to graduate, the Board refused to give effect to this factor, stating that it would convey the message that it would lighten the penalty if a student continues to cover up and deny, until sufficient credits are obtained. Finally, the Board differentiated this case from A.K.G. (Case 508) on the ground that the circumstances were different. Unlike this case, in A.K.G., the Student had already earned a degree and after that, on one occasion, submitted a false record to one recipient, and then immediately admitted what he had done. In closing, the Board stated that the deterrent effect of the penalty and the harm occasioned to the University by the nature of the offence were the two most important sentencing principles in a serious case such as this. The Board found that there was nothing in this case that could blunt or ameliorate the facts of the case or the need for consistency and uniformity in sentencing principles, in order not to skew future cases. The Board allowed the appeal and imposed a recommendation that the Student be expelled.