Posts tagged right to legal representation
Student politics is a nasty business. Universities, for their part, need to respect the process and keep a distance while having the courage and wisdom to act when a student’s conduct goes to far.
The case ofTefler v. The University of Western Ontario (CanLII) involves one student leader who was elected president of the graduate students’ society, only to have it slip through his fingers after the election was contested. The speaker of the society – the one responsible for deciding these issues – ultimately found the election to have been invalid. The almost-was president had sent a series of aggressive emails to the speaker (among other behavior described in the decision), who filed a harassment complaint against him.
Several months later, the university charged him with violating the Code of Student Conduct, specifically the following:
Any conduct on the part of a student that has, or might reasonably be seen to have, an adverse effect on the reputation or the proper functioning of the University, or the health, safety, rights or property of the University, its members or visitors, is subject to discipline under this Code.
He was also charged with violating the following part of the school’s Non-Discrimination and Harassment Policy:
Conduct and/or behaviour also constitutes harassment, whether or not it is based on the prohibited ground of section 4.00, when it creates an intimidating, demeaning or hostile working or academic environment.
The charges then travelled the full length of Western’s internal disciplinary procedures, with a few interesting highlights:
- The student was represented by a lawyer from the onset. Not just any lawyer, mind you, but Clayton Ruby (Wikipedia), whose name should be known by every law student in the country. Mr. Ruby provided written submissions in defense of the student, along with affidavits (Wikipedia) from several students connected to the dispute.
- There were three different steps in the process. The student first met with Vice-Provost and was given a chance to defend himself (without a lawyer present, which was only allowed on appeal). The Vice-Provost found him guilty and the student appealed to the University Student Discipline Committee, and then to the President – neither of which worked. Many universities only have a two-step process.
At the court level, the student made three main arguments:
1. Refusing to allow legal representation at the meeting with the Vice-Provost was unfair. The student maintained that he should have been entitled to have Mr. Ruby present then because (1) the allegations against him were serious; and (2) the possible consequences included expulsion – so there were important interests at stake.
But the court disagreed. Inviting in lawyers would only complicate the process and make it more costly, and in this case the stakes were not nearly high enough. The student had plenty of an opportunity to present his case in a fair process without having his lawyer standing in the room. But the court issued a strong warning to universities that might prohibit lawyers from these sorts of hearings no matter the details:
However, this decision should not be taken to condone the prohibition of legal counsel in every disciplinary proceeding of the University at the initial stage. In exceptional cases, …, where the stakes are not merely theoretically but realistically high for the student, the University may be well advised to consider permitting legal counsel to be present in the meeting with the Vice Provost or the Dean, as failure to do so may render the decision vulnerable to attack on the grounds of procedural unfairness.
2. It was unreasonable to consider the student’s conduct to amount to harassment. The student maintained that harassment involves repetition, coercion or the threat of coercion and an affront to another person’s dignity, thus the decision should be quashed.
The court disagreed and found that the university’s decision was reasonable in any event.
3. The university’s decision infringed the student’s right to free speech under the Charter of Rights and Freedoms. The student here referred to the Pridgen and Whatcott decisions, both of which relate to the application of the Charter to universities (see here for more discussion on that).
The court disagreed that the Charter applied to Western and the issue stopped there. Following Pridgen, universities have been concerned about the Charter applying to them, but several recent court decisions have distinguished Pridgen on the basis that the legislation connected to the University of Calgary is unique.
Here are the take-aways from this case for universities:
- If your policies flatly prohibit a student from inviting a lawyer to participate in any internal hearing, that should be changed to make an exception (at the least) for situations where important interests are at stake.
- Look at your governing legislation in light of Pridgen to try to anticipate whether the Charter argument is headed your way.
Here are the take-aways from this case for students:
- Not everything that happens in the political realm stays there. The most successful politicans aren’t there by accident. They are incredibly cautious in nearly everything they do, especially when it has to do with their opponents. Watch yourself, particularly if you feel you’ve been wronged.
- Sometimes it pays to hire a lawyer. These types of cases generally result in a win for the university. The ones that don’t wind up in court are the ones that are dealt with properly early on.