Case 837 - Appeal

 

Appeal by the University from a Tribunal decision not to accept the parties’ Joint Submission on Penalty (JSP).  The Student pled guilty to two charges of impersonation.  The matter proceeded by an Agreed Statement of Facts and a JSP.  Included in the JSP was a penalty of a permanent notation on the Student’s transcript coupled with an agreement that the Student never reapply to the University. The Panel accepted all the sanctions in the JSP, including the agreement that the Student not reapply to the University, except it replaced the permanent notation on the Student’s transcript with a lesser penalty of a five-year notation on the Student’s transcript.  The University appealed and sought a permanent notation on the Student’s transcript as agreed to in the JSP.

 

The Board allowed the appeal and ordered a permanent notation on the transcript per the JSP.  In so doing, they followed the test set out in the Board decision, The University of Toronto v S.F. (2014, DAB Case # 690). The Board found the parties should be able to expect the Panel to uphold a JSP unless it is fundamentally contrary to the interests of the University community and objectively unreasonable or unconscionable after considering all the relevant circumstances.  The Board elaborated that a JSP is against the public interest of the University if it is offensive to the values and behaviours that members of the University community are expected to uphold.  Examples of these values may be found in the preamble of the Code.  The Board adopted the standard of unreasonableness or unconscionable sentencing agreements set out by Moldaver J in the Supreme Court of Canada decision R v Anthony Cook, (2016 SCC 43) where sentencing agreements are unconscionable if they are  “so unhinged from the circumstances of the offence” that their acceptance would lead a reasonable observer to believe that the proper functioning of the justice system had broken down.  

 

The Board further cited the policy reasons for deference to negotiated sentences from the Cook decision which states that sentencing agreements are both commonplace and vitally important to the justice system at large.  The Board found that JSPs promote certainty in circumstances where an accused has given up their right to a hearing in exchange for a guilty plea and a negotiated sentence, acceptable to all. Time and resources are thus conserved, furthering the greater interests of fairness and efficiency. The Board found that the Panel erred by concentrating on its own subjective view on the reasonableness of the penalty, and not that of the greater community interests. 

 

The Board found that the Panel did not consider the actual circumstances surrounding the JSP, namely, that both parties gained advantages in the negotiated sanction.  The Student admitted to three serious offences (though only charged and pled guilty for two of them) which justified a sanction of an expulsion had the Student not agreed that she would never reapply to the University.  In making this agreement not to reapply which was not recorded on her transcript, the University obtained the benefit of the effect of an expulsion, at the same time, the Student avoided having a permanent notation of an expulsion on her transcript. If the notation was limited to five years, there would be nothing flagging the Student’s serious academic misconduct at the University should she choose to apply for admission to other institutions after five years.  Finally the parties were represented by counsel throughout the process. Taken together, the Board found that the JSP was reasonable in the circumstances and ought to have been accepted by the Panel. 

 

Appeal allowed.