Cases 596, 597 & 598 - Appeal

Appeal by the University from a majority decision by the Trial Division of the University Tribunal  in which the three 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 explaining their views about the nature of the offence in this case. The Board stated 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 in this case would involve a two-step process: (1) determining whether the Panel has made reversible errors of law or fact; and (2) if so, determining 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 its findings of fact and in its characterization of the evidence, which are material, and which if permitted to stand uncorrected, would detrimentally affect the University’s reasonable and long-standing position that students must take individual and primary responsibility for their actions themselves. 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 cheating. 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 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 or to each other should have no bearing in trying to measure their importance in the overall context of deciding a sanction for the last offences. 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 laid down in the Mr. C case. 

(2) The Board stated that while the Tribunal should approach sentencing in purchased essay cases with a working assumption that expulsion is the sanction best commensurate with the gravity of the offences, the result in each case would depend on multiple factors. The 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. Whether the student learned from the matter or expressed remorse is relevant but will rarely blunt the force of the offences. 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. If the offences in issue, purchasing and submitting a bought essay, has been the subject of a previous discipline process, then it would be most unusual for that student to escape expulsion for a second such offences. 

 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. 

The Board set aside and varied the five-year suspension and recommended to the President of the University recommend to the Governing Council expulsion from the University for each student.  

Appeal allowed.