DATE: January 13, 2022
PARTIES: University of Toronto v. M.D.M.B. ("the Student")
HEARING DATE(S): February 16, 2021; August 24, 2021; and September 21, 2021, via Zoom
Panel Members:
Mr. F. Paul Morrison, Chair
Professor Georges Farhat, Faculty Panel Member
Ms. Lauren Membreno, Student Panel Member
Appearances:
Ms. Lily Harmer, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
Mr. Domenic Saverino, Counsel for the Student, Weston Law Chambers
The Student
Hearing Secretary:
Ms. Krista Kennedy, Administrative Clerk & Hearing Secretary, Office of Appeals, Discipline and Faculty Grievances
The Student was charged under s. B.i.1(b) of the Code of Behaviour on Academic Matters, 1995 (the “Code”) on the basis that the Student knowingly used of possessed an unauthorized aid in a midterm exam. The Student was also charged under ss. B.ii.2 and B.i.1(b) of the Code on the basis that the Student knowingly had an intent to attempt to use or possess an unauthorized aid, or to obtain unauthorized assistance, in a midterm exam. In the alternative, the Student was charged under s. B.i.3(b) of the Code on the basis that she knowingly engaged in a form of cheating, academic dishonesty or misconduct, fraud or misrepresentation not otherwise described in the Code in order to obtain academic advantage.
The Professor who taught the course in which the academic offence alleged to have occurred and four students in the same course testified at the hearing. The Panel heard that the Professor did not observe the Student using her cellphone during the exam. However, the Professor testified that the following week, two students approached her and advised her that they both observed the Student using her cellphone during the midterm exam. Once the Professor received this information, she contacted the student who sat next to the Student during the midterm exam. This third student advised the Professor that she had seen the Student using her cellphone during the midterm exam. The Professor subsequently met with the Student concerning the academic offence. The Professor admitted that she told the Student she had personally seen her use her cellphone during the midterm exam in order to protect the identity of the students who alerted her to the Student’s improper use of her cellphone. Three out of the four students that testified at the hearing testified that they saw the Student looking at her cellphone in her lap. The fourth student testified that he was seated near the back of the classroom and the Student was seated toward the front of the classroom. Because he was facing the computer screen, he could see the Student during the midterm exam, but she was not in his direct line of sight. It was his evidence that he did not see anything unusual about the Student’s behaviour nor did he see her with her cellphone in her hand. The Student and the Student’s brother both testified at the hearing. The Student’s brother testified that he was enrolled at the University at the time the alleged offence occurred. He further testified that they would often drive to campus together and at times, he would walk with her to the class for the course in which the charges are related. The Panel noted that the Student’s brother recalled that on the day of the midterm, he walked with her to the class and that she was a bit late in arriving for the midterm exam. The Student testified that she was late getting to class for the midterm exam and that, when she arrived, all the other students were already seated. She testified that she took her regular seat at the front of the class and the Professor was about to begin the examination. The Student further testified that she put her papers and her phone in her bag underneath the desk. The Student denied that she ever accessed her cellphone during the midterm exam as it was in her bag for the duration of the midterm. She also denied speaking to any other student during the midterm. The Panel considered the evidence given by all the witnesses and preferred the evidence of the witnesses for the University over that of the witnesses for the defence, where there was a conflict. The Panel noted that the three student witnesses all gave evidence to the effect that they observed the Student using her cellphone in a surreptitious way during the midterm exam and that they were all in a position to make those observations. The Panel further noted that the charge does not require that there be evidence that the Student actually utilized the device but rather the charge is established if the Student had her phone on her lap or in her hand. In this case, the Panel outlined that the evidence established that the Student had her cellphone on her lap and in her hand, in use, during the midterm exam. Based on the foregoing, the Panel found that the Student was guilty of the first and second charges. Based on this finding, the University withdrew the third charge.
In determining sanction, the Panel considered the submissions of counsel for the University and for the Student. Counsel for the Student emphasized that the Student had no prior offences or disciplinary issues while attending the University. He further outlined that a suspension from the University of two years and a notation of the conviction on her record for three years was harsh and should be mitigated. Furthermore, counsel for the Student submitted that the Student should be permitted to graduate prior to the effective date of any sanction imposed. The University opposed this request. The Panel recognized and accepted that the offence in question is very serious in nature and causes detriment to the University and to its student body. Furthermore, there is a need to deter others from committing a similar offence. The use of unauthorized aids during an exam is a threat to the integrity of the University’s processes for evaluating students, is unfair to other students, and jeopardizes the University’s reputation. The Panel noted that as reflected in case law, conviction for a first offence generally results in a suspension of at least two years. The Panel recognized that this is the Student’s first offence and that it is important to send a clear message that such offences will be regarded as very serious and treated accordingly. The Panel imposed the following sanctions: a final grade of zero in the course; a two-year suspension; a three-year notation of the sanction on the transcript; and a report to the Provost for a publication.