Cases 596, 596, 598
DATE: November 23, 2011
PARTIES: University of Toronto v C., H., and K.
Hearing Date(s): October 24, 2011
Ronald G. Slaght, Chair
Elizabeth Peter, Faculty Member
Kenneth Davy, Student Member
Sabrina Tang, Student Member
Robert Centa for the Appellant
Joy-Ann Cohen for the Respondents, C. and K.
Philip Trotter for the Respondent, H.
Discipline Appeal Board – University appeal from sanction – expulsion a likely sanction in purchased essay cases – s. E.7(c) allows Board not to show any deference – principled approach showing some deference – majority erred in concluding Student were victims – submitting purchased essays could not be justified – majority erred in treatment of previous offences – no continuum of remorse – previous offence did not have to be identical to be relevant – majority erred by giving too much weight to demeanor and expressions of remorse – multitude of factors relevant in sentencing – effect of previous offences – indications of continuing dishonest motive and a failure to recognize and adhere to core University values – in purchased essay cases, two Chelin factors were more relevant than others: the detriment to the University and the need for deterrence – expulsion was the appropriate sanction – H’s affidavit was not much different from her earlier expressions of regret and there would need to have been something materially more dramatic to have an effect – Appeal allowed
Appeal by the University from a Tribunal decision in which the Students were each found guilty of purchasing an essay, contrary to s. B.i.1(d) of the Code, and sentenced to a five-year suspension. The University sought a recommendation that each Student be expelled. The Board started the analysis by stating that expulsion should be considered as a likely, or the most likely, sanction in purchased essay cases. On the issue of deference, the Board stated that although the language of s. E.7(c) of the Code allowed it to simply substitute its own view of the sanction for whatever reason, the Board in previous decisions showed some deference, basing determinations on a principled analysis. The Board stated that its role would involve a two-step process: (1) determining whether the Panel has made a reversible errors of law or fact; and (2) if so, whether those errors should result in a variation of the penalty imposed.
(1) The Board held that the majority of the Panel made significant errors in material findings of fact and characterization of the evidence in concluding that the Students were victims of commercial companies such as the Essay Place. The Board stated that the Students did not portray themselves as victims and the evidence showed rather that their concerns were more with the high dollar cost of purchasing the essays. In addressing the majority’s finding that the Students purchased the essays as a last resort, the Board stated that it could not endorse any suggestion that purchasing essays could be justified. The Board also found that the majority erred in taking a benign view of the previous offences committed by the Students: the majority failed to appreciate that within two months of their meeting with the Dean regarding their previous offence, the Students were conspiring together to commit much more serious offences, in the full realization that what they were doing was wrong. This was inconsistent with the majority’s finding that there was a continuum of expression of remorse. It should count that the Students committed a further offence after cheating, being caught, expressing remorse and apologizing. However, the fact that the earlier offences were not identical to the last offence should have no bearing in trying to measure their importance in the overall context of deciding a sanction for the last offence. The Board further found that the majority erred by giving too much weight in the Students’ demeanor during the hearing and their expressions of shame, regret, and remorse. The demeanor and such expressions should not be elevated to that degree of significance when measured against other sentencing factors.
(2) The Board stated that while the Tribunal should approach sentencing in purchased essay cases with a working assumption that expulsion was the sanction best commensurate with the gravity of the offence, the result in each case would depend on multitude of factors. These factors include the circumstances under which the essay was purchased and submitted; the degree of intent and deliberation; recognition by the student that the conduct was grave and wrong; involvement of other people; influences that can legitimately influence the penalty; subsequent events; and egregious or ameliorating factors. Although whether the student learned from the entire matter or true expressions of remorse are relevant, these will rarely blunt the force of the offence. On the issue of previous offences, the Board stated that when there was none, expulsion may not be the result. When there were one or more, whatever their nature, it would be a powerful indication that expulsion may be warranted. Moreover, when the previous offence involved purchasing and submitted an essay, it would be most unusual for the student to escape expulsion. The Board emphasized, however, that previous offences did not have to be similar; they served as indications of continuing dishonest motive and a failure to recognize and adhere to core University values. The Board further stated that in balancing the factors in purchased essay cases, two sentencing principles should be paramount over the others: the detriment to the University and the need for deterrence. Accordingly, the Board concluded that expulsion was the appropriate penalty for the Students. On the issue of the new affidavit submitted by H., the Board stated that it was not much different from her earlier expressions of regret and there would need to have been something materially more dramatic to overcome the overwhelming facts that otherwise point to expulsion.