Cell phone on desk

FILE: Case #499 (2008-2009)
DATE: October 6, 2008
PARTIES: University of Toronto v. Mr. S.S.

Hearing Date(s): November 26, 2007

Panel Members:
Mr. Raj Anand, Chair
Professor Ikuko Komuro-Lee, Faculty Member
Mr. Christopher Oates, Student Member

Ms. Lily Harmer, Assistant Discipline Counsel for the University, and Ms. Jodi Martin
Mr. Maurice Vaturi, Counsel for the Student, and Mr. Ben Zacks
Mr. S.S., the Student

Trial Division – s. B.i.1(b) of the Code – unauthorized aids – cell phone, cue cards and prior year’s examination – unaware of possession of aids and ignorance of how to operate cell phone – invigilator instructions not heard – interpretation of rules – cell phone not defined as unauthorized aid – phrase “ought reasonably to have known” suggests subjective element – Student subjectively knew or ought reasonably to have known that the items were unauthorized aids and ought to have known that the unauthorized aids where in the Student’s possession – finding of guilt – continuum of sanctions – see s. C.ii.(b) of the Code – academic status – no evidence aids used or benefited from – first allegation of academic offence – University not compelled to produce evidence of use and benefit in order to enforce rules and impose sanctions – stress and fatigue of preparing for and writing examinations not relevant mitigating factor – academic impact of sanctions is proper consideration – penalty sought by Student too lenient and penalty sought by University excessive for circumstances – grade assignment of zero in course; two-year notation on transcript; and report to Provost

The Student was charged under s. B.i.1(b), and alternatively, s. B.i.3(b) of the Code. The charges related to a final examination in which the Student was found to be in possession of a cell phone, cue cards containing text related to the examination, and a photocopy of a prior year’s examination. The Student pleaded “Not Guilty” to both charges. The Student claimed that he was unaware that he had had aids in his jacket pocket and he was ignorant of how to correctly operate his cell phone, having believed that he had turned it off. The Student produced a doctor’s report, dated two days after the exam, which stated that the Student was experiencing weakness, fatigue, dehydration and headache. The Student claimed that he felt nervous when he arrived to write the exam and that he did not hear any announcements or the exam invigilator asking him to remove his jacket. The Student claimed that he interpreted the rule that certain items were prohibited “at the desk” to mean “on the desk”. The University claimed that the Student knew or ought reasonably to have known that the items found in his possession were unauthorized aids. The Student claimed that while cell phones were prohibited at the exam, the Code did not define a cell phone as an unauthorized aid. The Student claimed that the phrase “ought reasonably to have known” suggested a subjective element that implies the intent to do wrong. The Panel found the Student guilty of having committed an offence under s. B.i.1(b) of the Code. The Student subjectively knew or ought reasonably to have known that the cure cards, the previous year’s exam and the cell phone (at least while on) were unauthorized aids and he ought to have known that he had those unauthorized aids in his possession during the exam. With respect to penalty, the University claimed that when a student wilfully disregards the rules, it jeopardizes trust and integrity. The Student submitted that the panel should impose sanctions on the more lenient end of the continuum provided by the Code at s. C.ii.(b). The Panel considered the Student’s registration vis-à-vis graduation and requested that the parties provide written submissions on the academic consequences of proposed penalties, addressing both fact and principle. The Panel found that the nature of the offence was at the less serious end of the spectrum of cases, and that there was no evidence that the Student used the cell phone or other aids to assist him in the examination, or that he benefited from their presence. The Panel found that the Student knew from his time at the University, the examinations he had previously written and the warning at the front of the examination in question, that the aids were unauthorized. Whether or not the Student turned his mind to the issue, he ought to have known that he was violating the rules. The Panel observed that the allegation of academic offence was the first against the Student and it found nothing to suggest that a repetition of the offence was likely. The Panel found that the University should not be compelled to produce evidence of actual use and benefit obtained from prohibited notes or similar items before it is able to enforce its rules and impose sanctions, and to disregard the principle that students must check unauthorized aids at the door before writing the exam would compromise the University’s processes. The Panel found that stress and fatigue of preparing for and writing examinations was not a relevant mitigating or extenuating circumstance as it had affected almost all students undergoing evaluation and it was inconceivable that the circumstances could justify a violation of the rules. The Panel found that the academic impact of the sanctions proposed by the respective parties was a proper consideration for the Tribunal for several reasons: the impact of the offence on the University’s “public” and on the individual in question is a reflection of the twin factors of general and specific deterrence; there is judicial authority for the application of criminal law principles of sentencing in cases of professional or regulatory discipline; under both criminal and administrative law discipline principles, mitigating or extenuating circumstances are relevant; and the criminal and administrative law discipline principles are reflected in the body of Tribunal cases. The Panel observed that only through inquiry and assessment of the implications of its intended penalty can the Tribunal determine which side that evidence supports. The Panel considered precedent cases and found that the penalty sought by the Student was too lenient while the penalty sought by the University was excessive for the circumstances. The Panel imposed a mark of zero in the course; a two-year notation on the Student’s academic record and transcript; and that a report be issued to the Provost.