Posts tagged discipline

Vancouver riot raises questions about scope of schools’ jurisdiction

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Just when you thought it was out of the media spotlight, Vancouver’s Stanley Cup riot is back in the news.   The Globe and Mail reported last week that Premier Christy Clark is frustrated that not a single charge has been laid in connection with the riot.  Police Chief Jim Chu responded that hearing about jailings of rioters in Britain should not spur further pressure of Vancouver police to make arrests, since it is important “to do this right” rather than rush things through. 

Interestingly, Chu remarked that several rioters have confessed to minor misdemeanors to avoid being charged with more serious offences caught on video, and several rioters brought in by their parents have turned out to be innocent. 

In other words, this is a mess. 

Given the public spotlight on many of the crimes committed during the riot, none of the wrongdoers are entirely safe from punishment, which may be delivered by Chu’s police force or the internet vigilantes standing proudly on virtual soapboxes while oddly cloaked in anonymity.  As previously discussed on this blog, many of those offenders are students, some of whom are returning to classrooms in the coming weeks, hoping that their acts of folly after the Stanley Cup loss will not trail them onto campus.

What happened on West Georgia, should stay on West Georgia, at least as far as educational institutions are concerned.   Universities in particular should avoid relying on the riot as a premise for punishing a student.  Many universities have comprehensive codes of conduct or general policies and regulations that detail the circumstances under which a student may be penalized for “non-academic behavior”. 

Under Section 61 of the University Act (BCLaws), the president of a university has the authority to “deal summarily with any matter of student discipline”, and when exercising that authority the president must provide a report to a standing senate committee on student discipline summarizing the president’s reasons.  The president’s decision is final, though the student can appeal to the senate.

This is how Section 61 is applied in the University of British Columbia policies and regulations related to non-academic misconduct by students:

  • “Non-academic misconduct” is not defined exhaustively, but is includes disrupting instructional activities, damaging university property or property belonging to a member of the university community, engaging in an act of hate or racism, and assaulting or threatening any member of the university community.  These sorts of behaviors are considered by UBC to be “matters of student discipline” for the purposes of Section 61.
  • An allegation of non-academic misconduct is generally reported to the Office of the University Counsel, which passes it on to the President’s Committee for a hearing according to its rules (UBC). 
  • The President’s Committee makes a recommendation to the President about what to do in the situation, and the President makes the final decision.
  • If the student does not like the President’s decision, the student can appeal the decision to a senate committee.  

The limits of the university’s jurisdiction for off-campus activities are not altogether defined clearly in the University Act or in UBC’s policies are regulations.  In contrast, the UBC-Okanagan Code of Conduct addresses this point directly, by specifying that the Code applies to conduct that:

  1. occurs on or near the premises of the university;
  2. occurs elsewhere in the course of activities sponsored by the university, or where the conduct is alleged to adversely affect, disrupt or interfere with another person’s reasonable participation in university programs or activities; or
  3. occurs in the context of a relationship between the student and a third party that involves the student’s standing, status or academic record at the university.

Translation:  UBC-O, along with other universities and educational institutions, should not be looking to punish students for their roles in the riot, no matter how long it takes for the Vancouver police to get moving on laying charges.

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BCTF sues chair of BC College of Teachers for defamation

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CBC reported earlier today that the BC Federation of Teachers (BCTF) has commenced a defamation lawsuit against Richard Walker, the current chair of the BC College of Teachers, for comments he made in an opinion piece published in a May edition of the Vancouver Sun.  (A link to the court document filed by the BCTF. which contains excerpts of the opinion piece, is available through the CBC article above.)

In the opinion piece, Walker noted that 270 complaints against teachers from members of the public (through the “person complaint” process) have been filed with the College since 2003 but no teacher has been disciplined, a fact which he alleged raises serious questions about how the BCTF has been using the College illegitimately to protect certain teachers to the detriment of students.  He also argued that changes should be made to the way the College functions in relation to the BCTF, specifically the endorsement by the BCTF of candidates for election to the governing body of the College.  Walker referred to Tom Ellison (Vancouver Sun), a teacher and convicted sex offender, to highlight the need for a procedure to identify and deal with troublesome teachers early on.  The opinion piece, among other factors, prompted Education Minister Margaret McDiarmid to launch a review of the College, which was not supported by the BCTF.

BCTF claims that Walker’s allegation that it interferes with, or bears undue influence upon, the disciplinary process maintained by the College is false and untrue and that BCTF suffered loss as a result on Walker’s defamatory words.

Is it likely a court will side with BCTF?  Here is a summary from the Canadian Encyclopedia of the law of defamation in Canada by Lewis N. Klar, a renowned author and expert on Canadian tort law:  

Defamation law protects an individual’s reputation and good name. Defamation law does, however, restrict freedom of speech. Thus, in deciding defamation actions, the courts must carefully balance these 2 important values…  

With the advent of the electronic mass media, such as radio and television, the difference between the written and spoken word became less important. Widely disseminated speech can cause as much harm as something which is written down. As a result, some provinces have even eliminated any practical distinctions between libel [i.e. written defamation] and slander [i.e. oral defamation].

In order to succeed in an action for defamation, the claimant must prove 3 things. First, that the material was defamatory. This means that it lowered the person’s reputation in the eyes of the “right-thinking” person. Second, it must be proved that the material referred to the claimant. In other words, people who heard or saw the material must have realized that it was the claimant whose reputation had been tarnished. This requirement prevents individual members of defamed groups from suing for defamation since it is the group itself that has been targeted. Third, it must be proved that the material was communicated to or published for someone other than the person actually defamed.

Even if the claimant can prove those three things, the onus shifts to the defendant to provide a defense.  There are two defenses, among others, that Walker may assert in these circumstances:

  1. It’s the Truth.  Generally, you can’t sue someone to stop them from saying things that are true about you.  The protection of one’s reputation under defamation cannot be stretched that broadly.  Since the onus to prove the truth of the allegations contained in the opinion piece are on Walker, it will be interesting to see what facts are brought in support.
  2. It’s a Fair Comment.  Opinions on matters of public interest that can be honestly-held on the proven facts are protected.  This is a softer defense than the truth – while the truth is an “absolute defense”, the defense of fair comment is eroded if the writer or speaker acted with the intent to injure the target of the comments or otherwise pursue their reputation with malice.  This is addressed pre-emptively by the BCTF in their document filed with the court.

Thus far, only BCTF’s perspective on this matter has been presented in the media.  It will be interesting to see how Walker chooses to respond.  In any event, this news reminds all of us, even in the world of education, that our words carry legal consequences and that in the age of the internet – where everyone with a modem has a megaphone – is becoming increasingly important for us to use those words with caution.

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