March 6, 2015
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INTRODUCTION

In December last year, Dalhousie University in Halifax launched an investigation into a complaint under the University’s Sexual Harassment Policy by a number of women about a Facebook group followed by 13 male students in the Faculty of Dentistry. Calling itself the “Class of DDS 2015 Gentlemen's Club”, some members of the group made disturbing and demeaning comments about female classmates.

According to the University, there are 47 students in the 4th year dentistry class (DDS2015) to which the students involved currently belong, and of these, there are 21 female students and 26 male students. This means that 50% of male students in the class belonged to the Facebook group. Initially five female students were known to be specifically identified in the posts, with more identified later.

The matter was first brought to the University’s attention on December 8, 2014 from a student who met with the university’s Human Rights, Equity and Harassment Prevention office (HREHP). It then came to the media’s attention on December 15, when information about the comments was made public. While there were media reports about the comments being brought to the University’s attention as early as summer 2014, the University clarified that the issue addressed by the HREHP at that time was unrelated to the Facebook comments.

The University has faced significant public criticism surrounding its response to the incident, including apparent delays and lack of transparency, with some alumni threatening to withdraw their support as a result. Despite the criticism however, it appears that the University has taken significant positive steps to address the issue since it came to the media’s attention.

In his initial public statement about the incident on December 17, 2014, President Richard Florizone expressed that, “this incident is particularly saddening because it shows how much more work we have to do, as an institution and a society, to create an environment free from harassment, discrimination and sexualized violence.” It also highlights the reputational risk that academic institutions like Dalhousie can face in relation to their investigative and disciplinary procedures, and brings up a variety of legal issues. Some of these, including human rights issues, have already been addressed in our previous post. This post considers whether Dalhousie “got it right” when handling its response to the incident, and will focus on the principles of natural justice and restorative justice in the context of administrative disciplinary measures in University settings. It will also touch briefly on some criminal law aspects that come into play.

THE PRINCIPLES OF NATURAL JUSTICE

Canadian common law provides procedural protections for parties to administrative proceedings, such as those undertaken by Universities, which are referred to as the ‘principles of natural justice’. In her remarks at the Annual Conference of the Council of Canadian Administrative Tribunals in May, 2013, Chief Justice of Canada, Beverly McLachlin explained that our Courts have “enunciated principles of natural justice to assure procedural fairness: the right to notice, the right to be heard, the right to a coherent procedure and a reasoned decision. These were the guarantees of the rule of law from a procedural perspective.”

The requirements of natural justice depend on the context. The Supreme Court of Canada set out a list of factors that influence the requirements in their 1999 decision, Baker v. Canada (Minister of Citizenship and Immigration). The factors included the nature of the decision being made; the process followed in making it; the statutory scheme under which the decision-maker operates; the importance of the decision to the individuals affected; and the legitimate expectations of the person challenging the decision.

Because of the potential for serious consequences for all of the parties involved, any action taken in relation to the Facebook comments by Dalhousie must follow a fair process, and the appropriateness of the University’s response depends on its policies. As the Court noted in a recent 2014 Alberta Court of Queen’s Bench decision, Wilson v University of Calgary, which applied the principles of natural justice to the University setting, “there is no doubt that expulsion from a university may have a major impact upon a student. A high standard of justice is required when the right to continue in one's profession or employment is at stake… A disciplinary suspension can have grave and permanent consequences upon a professional career.”

There have been a number of Canadian cases addressing a university’s ability to discipline students over the academic and non-academic misconduct. For example, the 2005 Nova Scotia Supreme Court decision, Pacheco v Dalhousie University, involved a student who made bizarre allegations of assault against him over a two-year period, as well as a threatening statement in a letter to the Minister of Education. The University imposed a long-term suspension, which could have been removed if certain conditions were met, including a psychiatric assessment. The student appealed, and both the University’s Appeal Board and the Court upheld the decision. The Court found that Universities are generally shown deference in the areas of student conduct and discipline. In this case, the university’s statute and constitution gave considerable discretion over discipline, the Board had special expertise in dealing with student discipline, and the University addressed the matter in a procedurally fair and compassionate way. In its decision, the Court noted, “I agree with the respondent that the University has a right to exert control over the non-academic behaviour of its students… It has the duty to protect its students, faculty, members of the administration, staff and, indeed, members of the public who may be affected by the conduct of any member of the University community.

More recently in 2010, an Ontario Superior Court of Justice, Divisional Court decision Frederick Zhang v. The University of Western Ontario involved an unsuccessful judicial review from a decision of the University Western Ontario Discipline Appeal Committee. The student in this case was a first year law student who asked disturbing and inappropriate questions in class, as well as made threatening postings on Facebook referencing individual students, for which he was expelled. Mr. Zang appealed to the University Discipline Appeal Committee, which denied the appeal. The Court upheld the Committee’s decision, finding that it was reasonable, and that the procedures followed by the University were fair and reasonable. The Court also held that the decisions of University officials regarding Mr. Zhang’s conduct should be accorded a high degree of deference, and referenced Pacheco, noting that, “Universities have the right to exert control over the non-academic behaviour of students because they have a duty to protect members of the University community.” Interestingly, the Code of Student Conduct in this case expressly stated that it applied to off-campus conduct.

Not all decisions have been as favourable to the administrative decisions made by universities however, and the benefits to handling reports of harassment and accompanying administrative proceedings well include increasing the likelihood that the findings of the investigation will be accepted by the parties involved, minimizing the risk of litigation, and protecting the University’s hard-earned reputation.

THE UNIVERSITY’S GOVERNING POLICIES

Dalhousie derives its authority to discipline students through its enacting statute, Section 7 of Chapter 24 of the Acts of 1863, an Act for the Registration and Support of Dalhousie College, as well as from the University’s constitution and its policies. The policies that are relevant to this incident include the Sexual Harassment Policy, the Code of Student Conduct, and the Faculty of Dentistry Academic Policy Manual for 2014-2015, which are outlined briefly below.

A.    Sexual Harassment Policy

The Sexual Harassment Policy sets out Dalhousie's commitment to providing a working and learning environment free from sexual harassment, and provides fair procedures for handling complaints when they do arise, as well as a wide range of disciplinary measures, including expulsion. Allegations can be resolved through either an informal or formal resolution procedure, and the Policy includes fairly specific procedures for both. The Policy makes clear that the University may take necessary steps to ensure the health, safety and security of any member of the University community. In his Statement on December 17, 2014, President Florizone indicated that the five women of DDS2015 who came forward, had done so under this policy, and four of these women had elected to proceed with a restorative justice process under the Policy’s informal resolution procedure. He also noted that if the participants did not demonstrate an appropriate commitment to the restorative justice process, the formal complaint procedure would be engaged.

B.    Code of Conduct

Dalhousie’s Code of Student Conduct sets out the offences for which a student may be subject to non-academic discipline, including expulsion, as well as the procedures the University must follow when it receives a complaint. The University obtained a legal opinion from Sally Gomery of Norton Rose Fulbright regarding a complaint submitted under the Code by four faculty members on December 22, 2014. Based on this opinion, it was determined that the complaint would not be accepted, and a formal statement was made to that effect on January 11, 2015. This is because while the comments posted by the DDS 2015 Gentlemen were likely to constitute conduct that fell under the jurisdiction of the Code, because they were “alleged to adversely affect, disrupt, or interfere with another person’s reasonable participation in Dalhousie University programs or activities”, the Code did not apply to conduct that was subject to action as a failure to meet standards of professional conduct required by a college, faculty or school, such as the Faculty of Dentistry. The complaint was therefore inadmissible.

C.    Faculty of Dentistry Academic Policy Manual

The Faculty of Dentistry’s Policy Manual requires respect for Dalhousie’s rules and regulations, as well as behaving professionally and refraining from behaviour that would reflect poorly on the University. The Manual Includes a Student Code of Professional Conduct, which is meant to embody the professional values of dental students with respect to their relationships with fellow students, patients, faculty and staff, society, and University. In particular, the Code requires students to “respect all races, ethnicities, religions, genders, beliefs and values of fellow students, and never harm other students by verbal, physical, emotional or physiological means”. Faculty members and the Academic Standards Class Committees (‘ASCCs’) have the overall responsibility for evaluating students on academic performance and professionalism, and can recommend a variety of consequences, including academic dismissal. No student can receive a DDS degree from Dalhousie without meeting both academic requirements and professional standards.

THE UNIVERSITY’S RESPONSE

The question that remains to be answered is whether Dalhousie appears to have handled its response to DDS2015 women’s complaints about the Facebook comments appropriately, in line with its policies and the principles of natural justice. The University’s has adopted a comprehensive process to address the comments, which is outlined on its website, and includes a communications strategy, police involvement, health and safety measures, and a restorative justice approach. It also involves the launch of a Task Force, and a University-wide Strategic Initiative.

A.    Communications Strategy

In order to ensure that an administrative process is handled properly from the outset, it is important that universities like Dalhousie take reports of harassment seriously and respond promptly. This demonstrates the University’s commitment to its policies, and gives confidence that these will be consistently enforced. It also minimizes the risk of further harassment, reduces the impact and strain of the process on the parties involved, avoids prejudice to either party through loss of evidence, and reduces reputational risk.

As with so many things, in handling an incident of this nature, effective communication is the key to success. While the University’s communications strategy in relation to the incident may have been delayed to some extent, it is likely that the University underestimated the media attention that the comments would garner. Not surprisingly, given the complexity of this matter, the University reports taking time to gather the necessary information and determine the appropriate process to follow, as well as seeking external public relations support. In his initial statement about the incident, President Florizone noted that, “Following media reports on Monday, December 15, the University committed to communicating steps for addressing the allegations within the next 48 hours, while maintaining the confidentiality of the individuals involved.”

While on the subject of confidentiality, there have also been criticisms that Dalhousie has not been sufficiently transparent in its process, as the University has chosen not to disclose the names of the men involved or share details about the posts. However, maintaining confidentiality as much as possible, not only preserves the integrity of the administrative process, it is also required under Dalhousie’s Sexual Harassment Policy. While it is important to preserve confidentiality as much as possible, it is important to remember that complete confidentiality surrounding a complaint is not usually possible. In most cases, relevant information will need to be revealed on a need to know basis to those involved in the process.

Despite its slow start, Dalhousie has made good use of online and social media communication in relation to the incident since January, establishing a dedicated website titled, ‘Culture of Respect’. The website highlights Dalhousie’s commitment to change, stating that, “We hold ourselves to a higher standard than what we’ve witnessed at our university. Misogyny in our classrooms, on our campus and in our community is unacceptable. This is not who we are.” It includes public statements made by President Florizone, outlines the University’s process to address the comments, provides links to policies, resources on sexual harassment, provides a comprehensive set of frequently asked questions, and a twitter feed. In addition to establishing the website, the University also conducted a survey on inclusiveness and diversity on campus, and the Dalhousie Student Union (‘DSU’) hosted a Forum on Misogyny on January 15, 2015.

B.    Police Involvement

Dalhousie’s Sexual Harassment Policy indicates that confidentiality may not apply where disclosure is required by law. There are certain situations where the University may be legally required to divulge information obtained during an investigation to the police. In this case, The University shared information related to the Facebook comments that was requested by the Halifax Regional Police (‘HRP’) on January 14. On January 15, HRP issued a Media Release on Review of Material from Dalhousie University, indicating that their review team did not observe anything to suggest a crime had occurred, and that they would not be commencing a criminal investigation into this matter. The release did not elaborate on the reasons for this decision, but it was likely related to the fact that the comments were made in a closed social media forum that was only accessible by group members, and not by the general public, or to the women about whom comments were made.

The Handbook for Police and Crown Prosecutors on Criminal Harassment addresses the issue of criminal harassment using technology, also known as cyberbullying or cyber sexual harassment, depending on the nature of the conduct. According to a report by Safety Net Canada published in 2013, 76% of criminal harassment and stalking victims in Canada are girls and women.Charges for criminal harassment are made under s. 264 of the Criminal Code, which reads:

264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

When criminal harassment is conducted through an electronic device like a computer or smartphone, the elements of the offence remain the same, it is just that the tools used to commit the crime are different. Depending on the activity involved, charges under additional sections of the Criminal Code might also be considered, including uttering threats (s. 264.1), willful promotion of hatred (s. 319(2)) and intimidation (s. 432). In rare cases defamatory libel (s.298-301) might also be considered.

In Hill Note Number 2014-15-E on Cyber Sexual Violence in Canada, Laura Munn-Rivard explains that increased use of the internet has expanded the scope, nature and impact of sexual violence. This has brought challenges to law enforcement agencies and exposed some gaps in our criminal laws in addressing these types of crimes. Bill C-13, the Protecting Canadians from Online Crime Act, which was introduced in November 2013, received Royal Assent on December 9, 2014, and will come into force in March 2015, clarifies that if the elements of an offence in the criminal code contain an “explicit or implicit element of communication without specifying the means of communication, the communication may also be made by a means of telecommunication.” The Bill also addresses the non-consensual distribution of intimate images and increases “lawful access” by police when investigating cybercrimes.

C.    Health and Safety Measures

In order to ensure a safe and supportive environment for all of the parties involved in the incident, particularly the female DDS2015 students targeted by the comments, but also the patients of the school’s public dentistry clinic, Dalhousie took a number of proactive health and safety measures, which are outlined on their Culture of Respect website.

For example, Dalhousie made supports, including counselling services available to all of the students in DDS2015, and on December 22, 2014, the ASCC suspended the 13 male DDS2015 students from clinical activities on the basis that their Facebook postings demonstrated poor judgment and blatantly unprofessional behavior. It decided to close the school’s public dental clinics between December 22, 2014 and January 12, 2015. This was a significant decision as students spend most of their fourth year in clinic. The students were also barred from attending classes with the remainder of the DDS2015 students, in some cases provided with separate instruction or attending lectures via webcast. They also wrote their rescheduled December exams in a separate location. In a public statement on the interim suspensions made on January 5, 2015, President Florizone said, “the safety and wellbeing of the students, faculty, staff and patients of the faculty are always a top priority and mechanisms would be put in place to support this as needed.” The university also made clear that the Faculty of Dentistry ensures public safety for patients by ensuring professional standards are met as a requirement of graduation with a DDS degree.

D.    Restorative Justice Approach

The University’s process to address the Facebook comments includes a restorative justice process, launched under the University’s Sexual Harassment Policy, which began in late December and is ongoing. It is described as an inclusive and participatory process that engages those with a direct stake in the outcome of the situation, and requires those who have caused harm to accept responsibility and be accountable for the consequences of their actions. There is no fixed timeline for the restorative process, but it is expected to be completed by the end of the semester in mid-March. According to Dalhousie’s website, the ASCC is working alongside the restorative justice process, and will be meeting as required during process, making itself available to the restorative justice facilitators. The ASCC’s final determination will be made on the fate of the 12 male students who participated in the process following its completion.

There has been considerable debate and confusion over the women of DDS2015’s support of the restorative justice process, and whether or not it should proceed. According to the president’s public statements on December 17, 2015 and January 5, 2015, while the university recognized that not every member of DDS2015 supported or wished to take part in the process, a number of the women who came forward elected to proceed with a restorative justice process instead of a formal complaint procedure. The entire class was invited to participate, and demonstrated “strong” support for proceeding. In total, 29 out of 47 members of the class (62%), including 6 women named in the posts, 11 women and men from DDS2015, and 12 of the 13 Facebook page members elected to proceed with it. The facilitators considered this to be sufficient participation for the restorative justice process to continue.

The University subsequently received an anonymous open letter from four women of DDS2015 on January 6, 2015. In it, they indicated that they felt pressured to accept the restorative justice process to resolve the scandal, discouraging them from choosing to proceed formally, and felt that the university’s approach had perpetuated their experience of discrimination and re-victimized the women in their class. The letter urged that the University accept the Code of Conduct complaint launched by four members of faculty, indicating that they had serious concerns about the impact of filing formal complaints on their future academic success within the Faculty.

In an apparent reversal of this position, as part of an Open Statement from the Participants in Dalhousie’s Restorative Justice Process released on March 2, 2015, the women of the DDS2015 Class involved in the process made a statement that, “we made this choice informed of all of the options available to us and came to our decision independently and without coercion… We feel safe with the members of the Facebook group involved in this restorative process.” It is unclear what may have prompted this change.

As noted in our previous post, restorative justice is not an appropriate resolution mechanism for every situation, and the University has faced criticism for using this approach. In a presentation made by Arlène Gaudreault in 2009 on The Limits of Restorative Justice, which is available on the National Victims of Crime Awareness Week website, she notes that while many victims can benefit from restorative justice, organizations that advocate for victims have strong reservations about the restorative justice model in cases of violence against women because of the risk of increasing existing power imbalances, further victimization of the women involved, and keeping this type of violence behind closed doors. Similarly, in a report titled Restorative Justice in Canada: What Victims Should Know, prepared by the Canadian Resource Centre for Victims of Crime, the authors express that for some victims, meeting with the offender can be overwhelming, and restorative justice should only take place where the victim’s participation is entirely voluntary, and without pressure. It is very unclear whether this was the case in this instance, and another type of process would likely have been advisable.    

On March 2, 2015, President Florizone provided an Update to the Community, which indicated that the ASCC had approved a conditional return to clinic for the 12 men who were participating in the restorative justice process. The conditions included close supervision and ongoing demonstration of high standards of professionalism, among others. The men have already attended workshops on topics like misogyny, rape culture and bystander intervention. Every woman in the class was consulted individually before the decision was made and supported the conditional return. Clinic patients will also have the option not to receive treatment from the men. Despite their return to clinic, some of the men will not graduate in the spring with their class. The ASCC will meet separately with the male student who chose not to participate in the process, and make a determination as to whether he engaged in unprofessional conduct, and what remedial measures will be taken. According to the student’s lawyers, the student, who was the initial ‘whistleblower’ in this case, chose not to participate in the process because he understandably “refused to acknowledge that he was guilty of blatant unprofessionalism.”

E.    Task Force and Strategic Initiative

As part of its response, and acknowledging its broader responsibilities within the Faculty of Dentistry, the University as a whole, and the general public, the University established two initiatives to address diversity and inclusion on campus. President Florizone reinforced Dalhousie’s commitment to these initiatives, noting, "In Dalhousie’s Strategic Direction we stated that building a collegial culture grounded in diversity and inclusiveness is an institutional priority. This incident gives new urgency to that commitment."

The first of these initiatives was a Presidential Task Force on Misogyny, Sexism, and Homophobia in the Dalhousie Faculty of Dentistry, established on January 9, 2015, and led by University of Ottawa law professor Constance Backhouse. The task force has a broad mandate to investigate the culture, practices and policies within the Faculty of Dentistry to determine if a systemic culture of discrimination exists within the Faculty, and if so take steps to eliminate it. Under its terms of reference, the Task Force is to deliver a report to the President no later than June 30, 2015. Constance Backhouse spoke with CBC about her thoughts on the scandal. She noted that, “This is not massively different from the kinds of experiences we are having on other campuses and indeed in our culture generally." Reflecting this statement, Dalhousie shared the number of sexual assaults reported on its campuses in a public statement on February 15, 2015, ‘Addressing Sexualized Violence at Dalhousie: Behind the Numbers’. Data from a 2013 report of the Canadian Association of College and University Student Services on the health of Canadian post-secondary students indicated that Dalhousie did not appear to be experiencing a greater incidence of sexual assault compared to

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.