Case 948

DATE: August 23, 2019
PARTIES: University of Toronto v. S.W

HEARING DATE: July 17, 2018; August 30, 2018; February 25, 2019; February 28, 2019; March 21, 2019; April 23, 2019

Panel Members:
Mr. Nader Hasan, Chair
Dr. Pascal van Lieshout, Faculty Panel Member
Ms. Yusra Qazi, Student Panel Member

Appearances:
Ms. Lily Harmer, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
Ms. Lauren Pearce, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
Mr. Lorne Sabsay, Representative for the Student, Sabsay Lawyers

In Attendance:
Mr. Christopher Lang, Director, Appeals, Discipline and Faculty Grievances (July 17, 2018; August 30, 2018; February 25, 2019; February 28, 2019; March 21, 2019; April 23, 2019)
Ms. Jennifer Dent, Associate Director, Appeals, Discipline and Faculty Grievances (February 25, 2019; February 28, 2019; March 21, 2019)

Interpreter:
Mr. Kau Kiang Woo, Mandarin Interpreter for the Student, accredited by the Ontario Ministry of Attorney General

The Student was charged with academic misconduct under the Code of Behaviour on Academic Matters, 1995 (the “Code”) on the basis that she knowingly forged or knowingly made use of two sets of forged documents, namely a Simon Fraser University (“SFU”) transcript and various SFU course outlines. Specifically, the Student was charged with forgery under s. B.i.3(a) of the Code, and in the alternative, academic dishonesty under s. B.i.3(b) of the Code.

In April or May of 2015, the Student submitted an application to the University for admission as a transfer undergraduate student. In support of her application, the Student submitted an official transcript of an academic record from SFU bearing the Student’s name. The Student was admitted to the University on the basis of her application and the supporting transcript. Following her admission to the University, the Student sought to obtain transfer credits for a number of courses reflected in the SFU transcript and submitted to the University five course outlines bearing course codes and information associated with courses offered by SFU. The Student conceded that she did not attend SFU and that the SFU transcript and course outlines were falsified (while the course outlines themselves were genuine, the Student was never enrolled in the courses described in the outlines). The Student argued in her defence that while it was never disputed that a fake transcript and fake course outlines were submitted in her name, she should not bear any responsibility because both submissions were made without her knowledge. The University submitted that the Student was not a credible witness and that she had knowingly hired a third party to create a falsified SFU transcript and submit it to the University in support of her application for admission and her application for transfer credits.

The Panel noted that the Student’s position depended in large part on a legal argument regarding the University’s evidentiary onus in the proceedings. The Student asserted that the University was required to establish each and every fact as alleged in the particulars, and that if the University fell short on that onus, the Student would be entitled to an acquittal.

The Panel noted that under the Code, the University bears the onus of establishing on a balance of probabilities, relying on clear and convincing evidence, that the Student committed the academic offences as alleged. The Panel further noted that pursuant to the Code, wherever an offence is described on ‘knowing’, the offence shall likewise be deemed to have been committed if the person ought reasonably to have known (Code, section B). Knowledge, the Panel stated, is therefore an objective standard and the University need not prove actual or subjective knowledge. The University was required to demonstrate that it was more likely than not that the Student knowingly “forged, altered or falsified” and/or “did utter, circulate or make use of” the two falsified records in this case. The Code makes it an offence to merely “make use of” a forged or falsified record; accordingly, the Panel stated, to establish guilt the University had to prove that the Student knew or ought to have known that the documents used in support of her applications for admission and transfer credits were forged or falsified, and that she knowingly made use of them. The Panel rejected the Student’s submission that the University was required to prove each and every fact particularized, as it is not legally tenable. The University provides the particulars to discharge its duty of fairness to inform the Student of the case to meet and because the Code requires that the Student be provided with particulars. The University must prove sufficient facts to substantiate the elements of the offence, but often the particulars go further than the bare elements of the offence. If the Panel were to accede to the Student’s argument, it stated, it would create a perverse incentive for the University to disclose no more than absolutely necessary to discharge its onus under the Code.

The Panel noted that while much of the evidence in the case was undisputed, some witnesses told different versions of the same events (in particular, the Student and her former boyfriend, YL, who had anonymously reported the Student to the University). While it noted that there is no magic formula to assessing credibility, the Panel noted the guidance of the courts in this regard and stated that in assessing credibility, it should carefully scrutinize the witness’ evidence before it in light of what they have said on prior occasions (R. v. M.G., [1994] O.J. No. 2086 (C.A.), at para. 23). Therefore, in assessing credibility of the Student and YL, the Panel was aided by their prior testimony in a criminal proceeding, which overlapped factually with the issues in this particular matter. Portions of the criminal trial transcript were admitted for the truth of their contents in this proceeding and for the purpose of assessing witnesses’ credibility. The transcripts relevance and their use were the subject to a prior ruling of the Panel (See University of Toronto and S.W, Case 948 – Interim Decision, December 21, 2018). The factual issues in this case turned on when the Student became aware of the forgeries. The Student testified that when requested to provide course outlines in respect of her SFU courses, she obtained a copy of the falsified SFU transcript and that she knew she had been admitted to the University and obtained transfer credits on the basis of a falsified transcript. The Student also knew that the University was seeking course outlines in respect of SFU courses that she had never taken in support of her application for transfer credits. The Student admitted to knowingly continuing to make use of the SFU transcript and accepting YL’s offer to submit course outlines for classes she did not take from a university she never attended. The Panel was satisfied that these admissions alone were enough to find the Student guilty of the misconduct alleged. While the University relied on the direct evidence of YL in arguing that the Student knew of the forged documents and was a willing participant in submitting them, the Panel noted that YL was an imperfect witness for a number of reasons (he was complicit in the Student’s misconduct and he had a motive to fabricate, due to the fact that the Student had made a formal complaint to the police that YL had sexually assaulted her). The Panel in this case, while acknowledging that YL had been acquitted at trial, noted that YL could be compared to a Vetrovec witness in this context, namely a witness whose credibility is compromised (Vetrovec v The Queen [1982] 1 S.C.R. 811). While noting that criminal law decisions such as Vetrovec are not binding on it, the Panel accepted that the principles articulated in it are instructive and that the trier of fact should be cautious in accepting testimony where a witness’ credibility is compromised, unless that evidence is corroborated by independent evidence.

The Panel noted that YL’s evidence was corroborated by significant circumstantial evidence which showed that, on a balance of probabilities, the Student knew or ought to have known that the records were falsified from the outset of her application to the University. This included the Student’s poor academic performance at the university she had actually attended, University of British Columbia; the Student’s contract with the agent hired to assist with her transfer application under which a significant fee was payable to the agent to prepare an application that hundreds of students complete on their own every year; and the Student’s inconsistencies in her evidence regarding the actual amount paid to this agent. While the Student’s evidence was supported by her mother, the Panel stated that it was difficult to rely on the mother’s evidence for a number of reasons including that the mother stated she was there as an advocate for her daughter, not as a witness, and that the mother denied there was anything wrong with making used of the forged documents. The Panel also heard evidence of meetings between the Student and the Registrar’s office in which the Student admitted that she was referred to as a transfer student from SFU. The Panel was satisfied that cumulatively, the weight of the circumstantial evidence of the Student’s knowledge of the forged documents from the time of her application to the University was significant, and corroborated YL’s evidence. On a balance of probabilities, the Panel found that the Student did in fact know that the SFU transcript was a forgery at or around the time her transfer application was submitted to the University.

The Panel found the Student guilty of two counts of knowingly falsifying or making use of a forged record, contrary to section B.i.3(a) of the Code. The Panel decided to re-convene to consider the appropriate sanction at a later date.