New College is an Ontario community college created under the Ontario Colleges of Applied Arts and Technology Act, 2002, and O. Reg. 34/03. Like all colleges it is ultimately managed by a Board of Governors, all of whom are appointed by the government. Under the Act, the college is an agent of the Crown.
New College’s Board of Governors has approved the New College Code of Conduct. It outlines the ways it expects everyone—faculty, staff and students—to behave while on campus. The “Mission” section of the Code reads in part,
“Students are responsible for observing a standard of conduct that will contribute to New College’s mission of positively supporting individuals on campus and in the community at large in their intellectual and personal growth. This responsibility includes respecting the rights, property, and well-being of other members of the New College community…”
Donald Tonkin is a third-semester student at New College. He was always involved in student politics. He served as representative at student council in first semester and was part of the executive in second. At the end of the second semester, he sought the presidency of student council. He was confident he’d win and was devastated when he lost against his only opponent and another member of the executive, Gloria Healey, by 42 votes with 1,574 votes cast. That was in May this year.
He contested the election, claiming Gloria or her supporters stuffed the ballot box. Since this was a student council issue, and not a New College issue, the complaint was handled by the council’s speaker, Liz Valentino. Liz
ought the matter to the council’s Elections Board in the early summer. Liz spoke with electoral scrutineers and had the board both review the voter lists and examine ballots. The EB did not hear from Donald. The EB found no problem with the election. Liz sent an email to Donald saying that.
Donald sent this email on June 10, exhibit 01, using his personal email account to Liz at her personal email account:
So let me get this straight: you decided the matter by talking to scrutineers, but not me? Did you know that one of the scrutineers is a personal friend of Gloria and the other one didn’t even stay the whole time? Would it have changed your mind had you learned that I watched as the second scrutineer left his post at about 10:30, just after I voted. I waited 30 minutes to see when he’d return. He didn’t. And the other one? She was texting with her eyes glued to her phone and didn’t look up once the whole time I was there.
God, you’re a moron. Why would you simply ask the scrutineers if they did a good job? You know they’re going to say yes. What did you expect them to say? “Busted! Yeah, we screwed up. I played Candy Crush the whole time and my buddy was bored, so he left half an hour in. So
y.”
You are utterly incompetent and way above your abilities here as speaker. That’s an investigation? My four-year-old nephew would have done a better job after watching two episodes of NCIS. One has to wonder whether you are working with Gloria to thwart the democratic process at New College. I DEMAND that you allow me to speak DIRECTLY to the EB WITHOUT YOUR INTERFERENCE!
______________________________________________________________________
Liz responded using her New College email account, exhibit 02:
Wow, you’re a pill, aren’t you? You’re allowed to be disappointed, and I suppose you are allowed to be rude, but there are lines. I shudder to think how you’d behave if life handed you a real knock. But to your request: No. You may not approach the EB. It doesn’t work like that. Read the bylaws. The EB can only respond to complaints of i
egularity from the speaker. I have
ought your concern forward. It did its investigation and reported back to me. I reported back to you. You can raise the matter again by asking the secretary to add it to the agenda when council next meets.
Two days later, Donald saw Liz enter the student council office. Donald thought Liz should not have access to the office after hours and that she might be colluding with his political opponents, so he video-recorded Liz using his cell phone, exhibit 03. Another student in the office noticed, approached Donald, and this resulted in a shouting match. Liz saw and heard the whole thing. The video is just under 30 seconds. It shows the main entrance of the student council office, a glass door with wide glass jambs on the left and right. As the camera gets closer and we can see past the glare, an unknown male and Liz talk behind the glass door. Both look up into the camera. We hear Donald’s voice: “Now why would Liz be here when there’s no council business to conduct?” The unknown male comes to the door, unlocks it, and opens it. We hear this exchange:
Donald: Hey, bud.
Unknown Male: We’re in meetings, Mr. President. You’re not invited. Go. Leave. Now.
Donald: I’m a student, this is council office, and I want to know what Liz is up to.
Unknown Male: What’s wrong with you? You think that if you sound reasonable on camera you can stalk Liz? Go, or I’m calling security.
Donald: I am not stalking Liz. I just want—
Unknown Male: I want you to leave, so let’s go with what I want for a change.
The male moves forward and the video jumps around a lot and ends a
uptly. After “Hey, bud,” the voices are loud and could safely be characterised as a
asive.
Liz
ought a complaint under these parts of the Code:
“Membership in the New College community implies acceptance by every student of the principle of mutual respect for the rights, responsibilities, dignity and well-being of others and a readiness to support an environment conducive to the intellectual and personal growth of all who study, work and live within it.
“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 New College, or the health, safety, rights or property of New College, its members or visitors, is subject to discipline under this Code.”
Section 7 of the Code prohibits harassment and provides:
“Any conduct or behaviour is harassment when it creates an intimidating, demeaning or hostile working or academic environment.”
The first stage of the Complaints Procedure is laid out in section 10 of the Code:
10.01
In any complaint alleging . . . harassment under section 7, . . . and where all the parties are cu
ent students of New College,* the
_____________________
* Cu
ent student of New College includes “people who would be cu
ent students of New College but for standing administrative, academic or disciplinary orders made under the Code.”
Vice-President, Student Affairs, has exclusive and mandatory jurisdiction and authority to conduct an investigation, determine whether misconduct occu
ed, and apply penalties under § 10.12.
10.02
In all investigations under § 10.01, the Vice-President, Student Affairs, shall choose a process that promotes fairness, transparency and efficiency. Without limiting the vice-president’s discretion under this part, the vice-president shall strive for a process that is informal, expedient, and, to the extent possible, private to minimize any emba
assment, regardless of the finding. The process shall at least include notifying students named in the complaint and provide a reasonable opportunity to respond and present evidence. . .
10.12
If, after investigating the allegations and determining misconduct has occu
ed, the Vice-President, Student Affairs can impose these sanctions:
a) Require a student to withdraw from New College immediately and not attend for a term of no more than six semesters
) Revoke all academic credit for any work done from the time of the misconduct occu
ed to the date of the sanction
c) Impose a fine of up to $500
d) Require the student to apologize to anyone affected by the misconduct
e) Require the student to attend training or obtain education outside New College that will reduce the likelihood of misconduct in the future
f) Require the student to pay all or some of the costs of training or education mentioned in § 10.12 e) unless the sanction would impose disproportionate financial hardship on the student
g) Any combination of the sanctions above
ut in all cases the vice-president must consider sanctions that will reintegrate the student committing misconduct back into the New College community, where practicable.
Consequently, Liz’s complaint was refe
ed to Dr. John Dwyer, the vice-president. The vice-president’s finding can be appealed to the College Disciplinary Committee, after which it can be further appealed to the college president. Under the policy, only the final hearing explicitly permits rights of representation. The policy otherwise says nothing about representation for the first two determinations.
Before the first meeting, Donald asked if he could
ing a lawyer. Dr. Dwyer said no—that wasn’t the way these hearings went, but, if the matter went all the way to the president, he could
ing representation then. Donald met with Dr. Dwyer in Dr. Dwyer’s office on June 19. He began with polite questions and took notes. Donald insisted he did nothing wrong.
After 20 minutes, Dr. Dwyer asked Donald if he had anything else to say. Donald started his story from the beginning. Dr. Dwyer inte
upted and said, “No, no, I’ve heard that. Aside from your own beliefs in Liz’s incompetence and animus towards you, is there anything else I should know?”
Donald paused and said, “Well, there is that guy on the video. I think Liz put him up to intimidating me. Let’s play the video again, but this time, pay close attention to—”
Dr. Dwyer stopped Donald, saying with a chuckle, “We’re not doing that. Watching it once was enough. It was short and my memory’s not that ho
ible. Besides, I never like watching a movie while listening to the director’s commentary. Anything else?” Donald said no.
Dr. Dwyer sent an email to Donald later that day, exhibit 04:
I find your email, the video recording and your conduct outside council offices constituted harassment under the Code. In reaching this decision, I acknowledge the importance of free political speech, but what you did and how you did it was not political speech. When looked at together, your actions, in my view, created or reasonably could be thought to create a hostile academic or working environment, and as such your behaviour is harassment in violation of the Code. I am consequently suspending you for one semester.”
Donald, offended and