Case #718 - Appeal

DATE: February 3, 2016

PARTIES: University of Toronto v O.K.
Hearing Date(s): November 11, 2015
Panel Members:
Patricia D.S. Jackson, Chair
Jenna Jacobson, Student Member
Beth Martin, Student Member
Elizabeth Peter, Faculty Member
Appearances:
Rob Centa, for the Appellant, the University of Toronto
Discipline Appeals Board – University appeal from acquittal of plagiarism charges – Student found guilty of unauthorized aid offences but acquitted of plagiarism offences arising from the same events – Tribunal erred in concluding that plagiarism under s. B.i.1(d) of the Code requires an element of theft – explanatory appendices are not intended to derogate or otherwise modify Code offences – interpreting plagiarism as requiring an element of theft is unworkable and undesirable – the rule against multiple convictions applies where there is a relationship of sufficient proximity between the facts and the offences which form the basis of the charges – appeal dismissed
Appeal by the University from a Tribunal decision in which the Student was acquitted of two plagiarism charges. The University submitted that the Tribunal erred in concluding that plagiarism under s. B.i.1(d) of the Code requires an “element of theft.” The University also argued that the “rule against multiple convictions” does not apply to prevent a conviction of plagiarism in respect of the same acts giving rise to a conviction for unauthorized assistance. The University did not seek any additional penalty in respect of the plagiarism offences. The Student did not attend the appeal hearing, and the Tribunal found that reasonable notice had been provided pursuant to the Rules of Practice and Procedure.
The issues on appeal relate to the Student’s submission of a partial essay draft and the subsequent final essay in the Course. At the Trial Division, the Tribunal found the Student guilty of unauthorized aid offences, but it declined to convict the Student of the plagiarism offences. In coming to that conclusion, the Tribunal noted that University counsel was not aware of any other cases in which a student had been convicted both of obtaining unauthorized assistance and of plagiarism in circumstances where a student submitted the work of another person. The Tribunal also noted that plagiarism necessarily includes the theft of misappropriation of the work of another; as there was no suggestion that the Student lacked permission from the Essay writer to use his idea, there was no basis upon which the Student could be convicted of the offence of plagiarism.
The Board found that the University had established the offence of plagiarism. The Student submitted the ideas, expression of ideas and work of another person without attribution or any other indication that they were not hers. The Board disagreed with the Tribunal regarding its suggested requirement to establish the additional element of theft, noting that there is no element of theft contained in the section of the Code that defines the offence of plagiarism. The Board emphasized that the Tribunal’s interpretation of the word “purloining” as found in the explanatory Appendix for s. B.i.1(d) is not intended to derogate or otherwise modify the plagiarism offence as set out in the Code. The Board noted that the Tribunal’s interpretation of the plagiarism offence is completely unworkable and undesirable in the academic setting; if the element of theft is required to make out the offence of plagiarism, then the University would be unreasonably required in every case to prove that the author did not consent to the student’s use of his or her idea, expression or work.
The Board found that the rule against multiple convictions prevents a conviction for plagiarism in respect of the same acts giving rise to a conviction of unauthorized assistance. The Board noted that this issue had not been previously addressed in decisions of the University Tribunal at either level. The Board cautioned against referring to cases that were decided on the basis of an agreed statement of facts and an agreement as to which charges would proceed and which would be withdrawn. The rule against multiple convictions is applicable where there is a relationship of sufficient proximity between (1) the facts and (2) the offences which form the basis of the two or more charges. The charges of plagiarism and unauthorized assistance arose from the same act. Rather than creating any additional or distinguishing elements to the offence of unauthorized assistance, the offence of plagiarism on the facts of this case was in effect a particular method of obtaining unauthorized assistance. The Panel concluded that there was a sufficient nexus between the offences and the facts on which they were based to engage the rule against multiple convictions.
The Board found that the Tribunal erred in concluding that the evidence did not establish an offence of plagiarism, but that the rule against multiple convictions prevents a conviction for both the unauthorized assistance offences and plagiarism offences. Appeal dismissed.