DATE: May 27, 2020
PARTIES: University of Toronto v. H.W.
HEARING DATE: February, 21, 2020
Mr. Dean F. Embry, Chair
Professor Lynne Howarth, Faculty Panel Member
Ms. Julie Farmer, Student Panel Member
Ms. Lily Harmer, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
Mr. Denna Jalili, The Student's Representative, Downtown Legal Services
Mr. Christopher Lang, Director, Appeals, Discipline and Faculty Grievances
The Student was charged under ss. B.i.3(a) and B.ii.2 of the Code of Behaviour on Academic Matters, 1995 (the “Code”) on the basis that she intended to commit the offence of forging or in any other way altering or falsifying an academic record and she did or omitted to do something for the purpose of carrying out that intention. Alternatively, she was charged under s. B.i.3(b) of the Code. Additionally, she was charged with one count under s. B.i.1(d) of the Code on the basis that she knowingly represented as her own an idea or expression of an idea or work of another in a term paper that she submitted in a course. She was also charged alternatively for this offence under s. B.i.3(b) of the Code.
The parties submitted an Agreed Statement of Facts (“ASF”), a Joint Book of Documents (“JBD”) and affidavit evidence. The Student did not contest the charge under s. B.i.1(d) of the Code. She acknowledged that she had included verbatim or nearly verbatim text and ideas in her essay without proper attribution and represented the ideas of another person as her own and in doing so committed plagiarism. Consequently, the Panel found her guilty.
The Student contested the allegation pertaining to ss. B.i.3(a) and B.ii.2 of the Code. The Student had placed an online order for a self-inking customized stamp and a seal embosser. It was admitted that the content of each item replicates the official stamp and seal used by the Office of the Registrar at the University of Toronto Mississauga (“UTM”) to authenticate official documents. The Student’s order came to the attention of the University because a representative of the company contacted the Office of the Registrar to confirm that they had ordered these items.
The Panel found the Student guilty under ss. B.i.3(a) and B.ii.2 because the mental element and actus reus had been proven. With respect to the actus reus necessary to make out the offence, the Panel found that the Student had clearly gone beyond “mere preparation”, a principle outlined in Deutsch v. The Queen  2 SCR 2. It considered the cost of the stamp and seal she ordered and their accuracy. It commented that the careful steps of acquiring, studying and replicating these items would have had to be taken before ordering the stamps online. The Panel also found that the Student’s actions constituted an attempt because there were very few steps remaining within the Student’s control to complete the offence once she received the items. As for the mental element, the Panel found that when the Student ordered the items, she intended to use them to commit the offence. It accepted that the most likely use to be made of the items once received would be to forge or falsify documents for some sort of material gain.
In discussing and weighing the inferences available, the Panel explained that when applying the balance of probabilities standard, it is not enough for there to be another reasonable inference available. Any reasonable inferences available must effectively outweigh the inference that the items were intended to be used to commit the offence. It also stated that any competing inferences did not have to be led directly in evidence but would have to arise from the evidence received by the Panel. The Panel found that the inference that the items were going to be used in an offence was much more likely than all other inferences when put together.
The Panel did not accept the Student’s argument that it risked falling afoul of the rule of law. She argued that nothing in the Code prohibits students from ordering instruments that resemble those used by the University and asserted that if the Panel were to find that doing so constitutes an offence, it would be creating a new offence. According to the Student, this would offend the rule of law requirement of prior notice as to what is forbidden. According to the Panel, this argument did not consider the general nature of codified offences and mischaracterized the issue and what the Panel was tasked to consider. The Panel observed that the fact that it was asked to rely on reasonable inferences to consider the issue did not result in the Panel inventing a prohibition. It was merely an instance of drawing inferences from proven facts to come to a conclusion.
Ultimately, the Panel concluded that all charges had been proven