°ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â

The President agreed that any suggestions that come out during discussion today that are not included in formal motions will be noted and conveyed to the CCAC. When the draft Code was first presented to Senate in November 2000, it had been hoped that a number of suggestions would be made that could then be considered by the Vice-Provost's Advisory Committee before the draft was forwarded to the CCAC. The debate at that time, however, focused solely on process and suggestions of the kind made today by Professor Bentley were not presented. Dr. Mercer added that members of Senate may also make written submissions for consideration by CCAC at its April 5^th meeting. The Secretary advised that the deadline for submissions to the CCAC on the matter of the Code of Student Conduct is Monday, March 26, 2001, at 4:30 p.m., and these should be directed to the University Secretariat.

The question was called and CARRIED.

S.01-62b It was moved by C. Sinal, seconded by J. Morgan,

That Senate recommend to the Board of Governors that Section I.6. of the draft Code of Student conduct be amended as detailed below.

Professor A. Lee referred to the phrase in 6.b) "...when the individual holds out that he or she is a representative or member ...". She stated that "holds out" is bad writing, one reason being that it can be interpreted in two completely opposing ways. To "hold out" can also mean to "withhold", which is likely not what is intended here. She asked, as well, how an individual could be seen to represent himself or herself as a member of a student group or organization: Is wearing a t-shirt a way of "holding out" that one is a member of a group? If one refuses to volunteer that one is a member of a student group, does that have some significance? Mr. Sinal advised that the wording in question was developed by the Advisory Committee to the Vice-Provost, and while it was discussed by the ad hoc Committee, the latter did not in the end recommend a change in wording. The question of identifying with a group by wearing a t-shirt was discussed. It relates to a theme that ran through the Committee's deliberations, and that was one of "reasonableness" -- whether one could reasonably be seen as acting as a representative of the University.

Dr. Mercer advised Senate that the notion of "holding out" is a well understood concept in law. In this context it means representing oneself, whether designated or not, as being an agent of the University. The liability of the University as a large, decentralized organization, for activities that take place in its name or allegedly on its behalf goes well beyond liability that would accrue merely because it had designated or approved the activity. It is the fact that it is being represented and uncorrected that the University might be considered to have acquiesced in that unauthorized representation which needs to be corrected.

He added that one can imagine circumstances where if a group of students at a University residence put up a large banner and wore t-shirts with the same motto emblazoned upon them, representing themselves or holding out that they were somehow a University-affiliated organization, then that would constitute evidence that they were in fact representing themselves in that way.

Mr. Braun, President of the University Students' Council, stated that some aspects of the draft Code treat some students in an unequal manner, in particular, student leaders. The question arises as to what extent the University should limit the activities of its students off-campus. The ad hoc Committee's recommendations go a long way in resolving that matter. While he supported the principle that the Code should apply to students whose off-campus behavior interferes with another student's right, he objected to the notion that student leaders be singled out on the basis of their leadership roles. He argued that reference to representatives of recognized student organizations - USC, SOGS, and MBAA - should be removed, submitting that the University Students' Council, for example, "does not exist because of the University, but rather, it exists with the University, with the goal of representing students to the University and to all stakeholders of education. Unlike Intercollegiate Athletics, for example, the USC is incorporated under the Ontario Corporations Act and has full legal rights and privileges associated with that status." He stated that it is inappropriate to single out certain students on the basis of their leadership roles: "The Code of Student Conduct is not a code of student organization conduct." If the goal of I.6.b) is to apply to the actions of all representatives of students or Student Council, then it fails: there are officers of the USC who are not students. On the other hand, if the intent of that section of the Code is to apply only to officers who are students, then it is redundant since all students are covered by the Code.

S.01-62b-i It was therefore moved by J. Morgan, seconded by N. Kapoor,

That the motion be amended by striking from Section I.6.b) the words: "or a student organization recognized by the Board of Governors as representing parts of the student body (USC, SOGS, MBAA) or when the individual holds out that he or she is a representative or member of a student group or organization at the University", leaving the following:

b) off-campus conduct when the individual is acting as a designated representative of the University; and

Dr. Mercer stated that the effect of the amendment would be to undermine the purpose of the Code. It is not typically the case that off-campus conduct which "produces an adverse effect on the proper functioning of the University or the rights of a member of the University community to use and enjoy the University's learning and working environments" occurs when one is acting as a designated representative of the University. It is also not the situation in which typically liability accrues to the University. It tends to accrue when someone is not actually a designated representative of the University but when the individual behaves as if he or she were.

In response to a question as to whether the ad hoc Committee discussed removing reference to the USC, Ms. Nelson advised Senate that when the ad hoc Committee considered the question of off-campus behavior, it considered whether students were acting in their capacity as students or as individual citizens when they are off-campus. The Committee supported removal of reference to student "groups" in the belief that members of "groups" as individual students are accountable under the Code. With respect to the campus organizations mentioned in I.6.b), the Committee recognized that the USC, SOGS, and MBAA are organizations that purport to represent students. When, for example, an individual is acting as a designated representative of the University Students' Council, the Committee felt that they would be representing students of the University of °ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â Ontario and should be held to the same standard of conduct as other students.

Mr. Sinal confirmed that the Committee considered the substance of the recommendation that is now before Senate in the form of an amendment to the draft Code, but did not support it for the reasons mentioned by Ms. Nelson.

S.01-62b-ii At the suggestion of Ms. Dipchand, the mover and seconder of the amendment accepted the following wording in place of the original amendment:

That the motion be amended by striking from Section I.6.b) the words: "or a student organization recognized by the Board of Governors as representing parts of the student body (USC, SOGS, MBAA) or when the individual holds out that he or she is a representative or member of a student group or organization at the University" and inserting "or behaving as if he or she is", with the result that b) would read:

b) off-campus conduct when the individual is acting as a designated representative of the University or behaving as if he or she is; and

Dr. Mercer stated that the change to the amendment does not allay any of the concerns he expressed earlier.

The AMENDMENT was called and was DEFEATED.

Debate on the main motion continued. Dr. Mercer addressed the proposed striking of the words "group or" from I.6.b) as recommended by the ad hoc Committee. The effect of that change would be that the Code would apply only to individuals acting as designated representatives of student organizations recognized by the Board, in other words, USC, SOGS, and MBAA. It would not cover the off-campus conduct of any group claiming affiliation with the University. There are many groups that can claim affiliation with the University. They can publish literature, they can put ads in newspapers, they can engage in sorts of promotional activities while identifying themselves with the University. The effect of taking out reference to "group" would mean that the Code would not apply to them because they are not an "organization recognized by the Board as representing parts of the student body".

Dr. Mercer also spoke against the recommendation of the ad hoc Committee to insert the words "the object of producing" in I.6.c). That language would have the effect of importing into that section the element of intention, in other words, that the off-campus conduct could not be found to be under the scrutiny of this Code if the individual claimed that he/she didn't intend to produce an adverse effect, even if the action was a reasonable outcome of what the individual did. He advised that debate about intention is in the exclusive preserve of the criminal law.

While Dr. Mercer urged Senators not to support the proposed amendments, he suggested that a lot of the debate over application of the Code might be avoided if °ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â were to adopt language similar to that currently under consideration at the University of Alberta, which he plans to bring to the attention of the Campus & Community Affairs Committee: "This Code applies to all conduct by a student or by students that have a real and substantial link to the University, University activities, the University community, or University-related functions, whether or not the conduct occurred on or in relation to University property."

Professor White suggested that insertion of words to I.6.c) to the effect that off-campus conduct that has "or might reasonably be seen to have had" an adverse effect on the proper functioning of the University might clarify section I.6.c).

Speaking in favor of the motion, Ms. Nelson reminded Senators that the ad hoc Committee focussed on whether the individual is acting in his/her right as a student. Because Section I.6.c) deals with the effect of an action, rather than an action itself, a student or an individual might reasonably take an action without having any idea that the effect might be to produce an adverse effect on the proper functioning of the University. By adding the element "the object of producing", it redirects attention to the action itself, rather than at the effect of the action. She gave the example of one student assaulting another off-campus. The student who assaulted the other may not have had any idea that he would be adversely affecting the proper functioning of the University because the other student is no longer able to attend classes. This raises the question as to whether the student who committed the assault was acting as an individual or as a student. She argued that the Code of Student Conduct should deal only with actions, and not the unforeseen outcome of such actions.

Mr. Sinal noted that students had a lot to say about the section of the draft Code that deals with off-campus activities of student groups. The Committee heard all sides of the arguments -- from students, from the external community, and from the original drafters of the Code. The Committee was sympathetic to concerns about liability of the University and objections to the notion that the Code would apply off-campus at all. They decided that the key factor is whether the actions were committed in one's capacity as a student or as an individual. The Committee deliberated over whether a group of students undertaking activities off-campus, for example, the "Purple Binge Drinking Society", should be regarded as a group of individuals having a party or °ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â students who should then reasonably be expected to espouse the conduct required of °ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â students. The Committee believed that by removing reference to a student "group", the scope of the Code's net would be reduced but the Committee felt that it is more realistic and more appropriate.

Reflecting on the example given by Mr. Sinal, Dr. Mercer stated that any group that calls itself the "UWO Purple Binge Drinking Society", advertises, sells tickets on campus, holds an event on an off-campus location attended by students who are subsequently involved in an automobile accident and rendered quadriplegics, the University would be sued, and probably sued successfully as an occupier, if not as a provider. He recalled the recent Hunt decision involving a situation where Ms. Hunt drove home after an office party where liquor was served. Ms. Hunt was involved in an automobile accident and her employer was successfully sued. If that is a liability situation for the University -- and it is -- °ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â's Code of Student Conduct should align with that. On the other hand, if two individuals who get into an altercation off-campus with the result that one is injured, this would not reasonably be seen to have an adverse effect on the proper functioning of the University. Ms. Nelson argued that the injured student could bring charges under the Code of Student Conduct if the injury had "an adverse effect on ... the [student's] rights to use and enjoy the University's learning and working environments."

S.01-62b-iii It was moved by J. White, seconded by P.A.W. Dean,

That the motion be amended by striking the words "or might reasonably have, the object of producing" from Section 1.6.c) and inserting in their place "or might reasonably be seen to have had", so that the section reads:

c) off-campus conduct that has, or might reasonably be seen to have had, an adverse effect on the proper functioning of the University or the rights of a member of the University community to use and enjoy the University's learning and working environments.

AMENDMENT CARRIED

Discussion on the main motion (S.01-62b) as amended, continued.

In response to concerns about liability and lawsuits mentioned by Dr. Mercer, Mr. Braun stated that lawsuits cannot be stopped, but to his knowledge there has never been a successful case in Canada of the type described. Dr. Mercer responded that there are in Canada at least three dozen applicable cases that were launched and were successful. He added that in Ontario lawsuits can be launched against multiple defendants. There is a principle of joint and several liability which indicates that if any of the defendants are unable to pay, those that are able to pay must pay for the others. A University will have "deeper pockets" than individuals and thus be at greater risk.

Mr. Gauthier argued that the Hunt case is not relevant to students off-campus because in the Hunt case, the employer provided the alcohol. Dr. Mercer stated that the Hunt case is in the forefront of the minds of everyone in the university community. It is relevant because the University can have a liability incorporated to it if anyone who acts on its behalf, with or without the University's authority, engages in behavior that is seen as causally related to an injury which results in incapacity or death. He stressed that the Code of Student Conduct should not take a different perspective on the extent to which the behavior of any of our members somehow redounds to the detriment of the University. The University should be wary of excluding from this Code conduct which could otherwise give rise to legal liability.

Professor A. Katz asked whether the establishment of a Code of Student Conduct by °ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â would have any impact on any decisions made by a court of law. Dr. Mercer said it might certainly be a piece of extrinsic evidence brought forward to indicate the University's attitude toward its responsibilities. For example, if the University took the considered position that by taking out the word "group" it had somehow limited its liability in a civil suit against it as an occupier, that would be brought forward as evidence that the University may have been careless or indifferent as to its legal position. He noted that Senate is preparing its recommendations to the Board on the matter of the Code of Student Conduct and the Board will ultimately determine what the Code will be. As General Counsel to the University, he will vote against the motion under consideration now for the reasons he has outlined, and if Senate approves it, he will be obliged speak against it at the level of the CCAC.

Mr. Sinal advised that the ad hoc Committee was well aware of the University's concern about liability and took that into account. The Committee considered the University's legal liability and the desire to have a wide net versus a Code of Student Conduct that asks students to espouse conduct that is expected of °ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â students. After a good deal of discussion, the group agreed on the proposal that is before Senate today. He characterized this motion as representing "middle ground".

Asked if the Board of Governors will be in any way bound by the recommendations of Senate today, the President confirmed that Senate's advice on this matter is not binding on the Board.

Dr. Davenport observed that there has been a good deal of discussion about legal liability, which is a big issue, but the other issue is student safety. Every year there are alcohol-related deaths of students the United States. A University has to be concerned about its responsibility to students and to families of students who are injured or killed as a result of alcohol-related student activities. It is an issue that goes beyond legal liability. The cases in the United States make it clear that the University is seen as responsible if it has not taken some kind of measure to limit these types of activities.

The main motion AS AMENDED was called and was DEFEATED.

S.01-62c Before stating the motion, Mr. Sinal noted that the word "intent" in the first line of V.9.c) as reflected in the Committee's report should be "object". It was then moved by C. Sinal, seconded by J. Morgan,

That Senate recommend to the Board of Governors that Section I.8. of the draft Code of Student Conduct be deleted and that Section V.9. be amended as shown.

Dr. Mercer stated that for reasons stated earlier, reference to "the object" in V.9.c) is undesirable and he suggested that this section be changed to reflect an adopted amendment to I.6.c).

S.01-62c-i It was therefore moved by M. Workentin, seconded by J. White,

That the motion be amended by striking the words "or might reasonably have, the object of producing" from Section V.9.c) and inserting in their place "or might reasonably be seen to have had", so that the section reads:

c) Any other conduct that has, or might reasonably be seen to have had, an adverse effect on the proper functioning of the University or the health, safety, rights or property of the University, its members or visitors.

AMENDMENT CARRIED

The main motion, AS AMENDED, was called and CARRIED.

S.01-62d It was moved by C. Sinal, seconded by R. Forbes,

That Senate recommend to the Board of Governors that Section III. of the draft Code of Student Conduct be amended as highlighted below.

Dr. Harris advised Senate that she has reviewed the Affiliation Agreement between the Affiliated Colleges and the Board of Governors at the University. According to the Affiliation Agreement, it is the responsibility of the Colleges to discipline their students. As a result of this review, Dr. Harris informed Senate that she will be recommending to CCAC that the definition of "student" be more narrowly defined as: "'Student' refers to an individual registered at the constituent University in a credit course or program of studies." If accepted this will result in changes to Section III. Not only does this settle the question of applicability of the Code to students of the Affiliated Colleges, but will limit its applicability to students who are enrolled in a credit course or program of studies. The change will also mean that the elaborate procedures set out in the Code will not apply to persons enrolled in non-credit courses at The °ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â Centre for Continuing Studies downtown, 75% of whom take seminars or weekend workshops that are quite different from credit courses on campus.

Dr. Mercer said that persons not covered by the Code of Student Conduct, such as students in non-credit courses or students of Affiliated Colleges, who engage in misconduct can be handled in other ways. While the Code will set out language of expectation for Affiliated College students when they are on University property, the actual discipline process will be the responsibility of the Colleges.

The question was called and CARRIED.

S.01-62e It was moved by C. Sinal, seconded by M. Witen,

That Senate recommend to the Board of Governors that Section IV.3. of the draft Code of Student Conduct be amended as indicated below.

Mr. Kapoor offered the hope that the Board of Governors will consider integrating other disciplinary codes and policies into the Code of Student Conduct. The purpose would be to prevent an individual being sanctioned sequentially under a number of policies for a single incident of misconduct. Mr. Sinal supported this suggestion, noting a comment in the report of the ad hoc Committee: "The Committee believes the relationship between the draft Code and other existing University policies be clarified to ensure that the ... Code is applied only where an alleged offence might warrant instituting disciplinary proceedings or sanctions beyond those available under existing University policies."

The question was called and CARRIED.

S.01-62f It was moved by C. Sinal, seconded by A. Percival-Smith,

That Senate recommend to the Board of Governors that Section V. of the draft Code of Student Conduct be amended as shown below.

CARRIED

S.01-62g It was moved by C. Sinal, seconded by R. Forbes,

That Senate recommend to the Board of Governors that Section VI. of the draft Code of Student Conduct be amended as highlighted below.

VI. Sanctions

The University may impose one or more sanctions for misconduct, of which those listed below are examples.

1. Verbal Warning from the instructor or other person in authority.

2. Exclusion from a class, examination room, or other area. (Note: In this context, "class" refers to a period of instruction such as a lecture, seminar, tutorial, laboratory session, recital, concert or exhibition of visual arts or sports event).

3. Formal Reprimand.

4. Removal, either temporarily or permanently, from a course in which the student is registered.

5. Prohibition or limitation of access to any academic facility.

6. Prohibition or limitation of employment at the University.

7. Prohibition or limitation on entering University premises or specific parts thereof and/or restriction on contact with specified person(s).

8. Restitution. Compensation for loss, damage, or injury to the appropriate party in the form of service, money, or material replacement.

9. Forfeiture of University awards or financial assistance.

10. Disciplinary Probation. A designated period of time during which the student is not in good standing with the University. The terms of probation may involve restrictions of student privileges and/or set behavioural expectations, violation of which will result in the imposition of further sanctions.

11. Deregistration. Removal from some or all courses for one or two terms.

12. Suspension from the University for a specified time period.

13. Expulsion from the University.

The sanctions imposed shall be proportional to the type of misconduct. The mo st serious types of misconduct will merit the most serious sanctions: deregistration, suspension and expulsion.

CARRIED

S.01-62h At the request of Mr. Weese, and with the agreement of Senate, Recommendation 2.h. shown on pages 8 and 9 of the Committee's report was split into two parts.

It was moved by C. Sinal, seconded by C. Prabhakar,

That the final sentence of Section VIII.7. be deleted.

VIII. Procedures

7. At all meetings with the Dean (Vice-Provost), the student may be accompanied by a colleague of his or her choosing. Legal representation is not permitted.

Mr. Sinal pointed out that the deletion of the sentence in VII.7. relates as well to the addition of a new item 4. in Section X. Appeals -- "Legal representation at this stage is permitted." - which comes up in the next motion.

Dr. Mercer stated that legal representation at the stage of a meeting between the Dean (or Vice-Provost) and the student is not desirable. The reason is that it does not fit with the complexion of what happens. This involves the student retaining counsel, to speak and act on his or her behalf. That means, in turn, that the Dean or Vice-Provost will almost inevitably also have a lawyer present. This constitutes a legal forum at the first instance. Dr. Mercer pointed out that the student's legal costs will not be paid for by the University, and having legal representation at this stage will inevitably make the proceedings lengthier and more expensive. To delete the provision "Legal representation is not permitted" will raise the question of whether it is permitted; consequently it makes sense to leave the sentence in Section 7.

Professor White observed that the presence of a lawyer, particularly as representative of the student at the initial interaction, will make it much more difficult to get to the facts and will hurt the student's chances for informal closure of the issues. The responsible officer of the University will have no choice but to be very formal and will probably engage legal representation. This will rapidly lead to increased costs and decreased satisfaction for all concerned.

Ms. Nelson explained that the purpose of deleting the sentence is not to encourage students to involve legal counsel, but rather to reflect the experience and practice in academic appeals. Removal of the sentence is counterbalanced by the addition of a new section 4 under X. Appeals. Although this dual action would not explicitly prohibit legal representation at the early stage, it will discourage such representation by making it clear that legal representation is an option at the final appeal stage.

Mr. Sinal emphasized that mention of legal counsel at the appeal stage mirrors the rules of the Senate Review Board Academic: there is no mention of legal counsel in the early stages, but there is the following provision at the level of SRBA: "In matters of academic appeal, the right to be represented by counsel will be accorded only at the level of SRBA..." The ad hoc Committee debated as to whether the word "only" should be included in the proposed new section in the Code. The Committee consulted with Associate Deans and others and learned that while the SRBA rule appears to limit legal representation to the appeal stage, their experience has been that if a student insists on bringing a lawyer into a meeting with the Associate Dean, it is permitted. For that reason, the Committee decided to reflect practice rather than the ideal by not including the word "only", as will be seen in the next recommendation. Nevertheless, the Committee strongly discourages students from involving legal counsel at the early stage of the process.

Asked how the University could enforce the prohibition of legal representation if the sentence in question is left in Section VIII.7., Dr. Mercer suggested that the Dean or Vice-Provost could advise the student that he or she could be accompanied by a colleague but not represented by a lawyer -- that a lawyer cannot speak on behalf of the student. The meeting is between the Dean or Vice-Provost and the student, and a responsibility under the Code is that the student engage in a meeting with the Dean or Vice-Provost. He added that while he is sympathetic to the fact that students show up at a meeting with a lawyer, it is the matter of legal representation that should be carefully avoided.

The question was called and CARRIED.

S.01-62i It was moved by C. Sinal, seconded by N. Kapoor,

That Section X. be amended as detailed below, including the addition of a new Section X.4.

X. Appeals

1. A student may appeal to the University Discipline Appeals Committee (UDAC) on one or more of the following grounds:

(a) that the sanction was inappropriate if the sanction imposed was deregistration, suspension, or expulsion;

(b) that the sanction imposed was not proportional to the type of misconduct;

(c) that there was a serious procedural error(s) in the hearing of the complai nt by the Dean (Vice-Provost) which was prejudicial to the appellant;

(d) that new evidence, not available at the time of the earlier decision, has been discovered , which casts doubt on the correctness of the decision;

(e) that the Dean (Vice-Provost) did not have the authority under this Code to reach the decision or impose the sanctions he/she did.

2. Filing an Appeal Application will not stay the implementation of any sanctions imposed except where the Chair of UDAC otherwise orders upon application of the appellant.

3. UDAC may: deny the appeal, grant an appeal under 1(a) and vary the sanction, grant the appeal and/or vary the sanction under 1 (b), grant an appeal under 1 (c) or (d) and direct the previous decision maker to re-hear the matter or reconsider some pertinent aspect of its decision, or grant an appeal under 1(e). In the case of a direction to re-hear the matter, UDAC may also include recommendations relating to the conduct of the re-hearing.

4. Legal representation at this stage is permitted.

S.01-62i-i It was moved by J. Santos, seconded by N. Kapoor,

That the words "or warranted" be added to Section X.1.b), so that it reads:

b) that the sanction imposed was not proportional to the type of misconduct or warranted;

Professor Rosner observed that the proposed amendment would allow anyone to appeal, whereas usually the right to appeal is limited. In his view, it is not efficient to introduce clauses into the Code that would allow anyone to appeal any sanction imposed under the Code. Mr. Santos stated that if one did not commit an alleged act of misconduct, the individual should have the opportunity to appeal. In his view, without a specific provision of this sort, a student who was charged and sanctioned but who did not commit the offense, would have no opportunity to appeal.

Mr. Sinal stated that even without the phrase "or warranted", someone could appeal on the basis that the "sanction was not proportional to the type of misconduct", that is, if one did not commit the offense, there would be no sanction that would be proportional. The Committee's deliberations in this area were substantial and the Committee considered carefully the example of the Senate Review Board Academic (SRBA), a tribunal that hears academic appeals and appeals involving scholastic offenses. At one time SRBA heard virtually every appeal that was placed before it, and the system became gridlocked. Senate then changed the terms of reference of SRBA such that for scholastic offenses there is an automatic right of appeal, but for other academic matters, the right of appeal is granted only in some circumstances. In the latter situation, SRBA then determines whether there are grounds for the appeal to be heard. In the case of the draft Code of Student Conduct, there are no automatic appeals: in all cases the appellant can request that the appeal be heard. To strike a middle ground, the Committee decided to recommend a new ground of appeal -- "that the sanction imposed was not proportional to the type of misconduct". While this would allow nearly anyone to request an appeal when they have been disciplined, a hearing is not automatic. An appeal panel would determine whether the appeal would proceed. If an appeal is frivolous, the appeal will not be heard. The Committee was still sympathetic to the concern that there might be a flood of appeals, and for that reason the Committee recommends that a mandatory review be embedded in the Code.

Dr. Mercer stated that both the amendment suggested by the ad hoc Committee and the proposed amendment would give virtually everyone the automatic right of appeal because there is no objective limit to proportionality. If the individual says, "I don't think the sanction is proportional to the misconduct", then it will be appealed. While not every appeal will be successful, each will entail constituting a panel, arranging timetables, making arrangements for a room, reviewing the application for hearing, and in many cases hearing the appeal. The stated purpose of the amendment is to address a situation where the individual claims that he or she did not commit the offense. That highlights the problem of justifying the amendment. What this actually says is "not only will we give everyone the automatic right of appeal, but furthermore they want to adduce all the facts," because the only way you can say "I didn't do it" is to bring out all the facts that were set out in the first instance (at the lower level). That means the whole issue must be re-examined. He pointed out, as well, that Section X.1.a), as recommended by the ad hoc Committee, grants an automatic right of appeal if "the sanction imposed was deregistration, suspension, or expulsion", in other words if it is a serious penalty. If one accepts X.1.b) -- amended or as recommended by the ad hoc Committee, even the mildest reprimand will be subject to an appeal, whether or not there is any new evidence, alleged procedural error, or lack of authority, since those are separate grounds in Section X.

Mr. Santos observed that Section X.1.a) proposes, in effect, that a student who is deregistered, suspended, or expelled will have the right to appeal, but overlooks the fact that a requirement to forfeit University awards or financial assistance (as set out in Section VI, sanction 9.) can have the same effect as deregistration but does not warrant an automatic right of appeal. If a student did not commit the offense that gives rise to the sanction of forfeiture of financial support, he should have the right of appeal.

Ms. Nelson reinforced the notion that proportionality of sanctions, as introduced in the new section X.1.b) proposed by the Committee, would cover a situation where the student claims that he or she did not commit the offense. She pointed out, as well, that the appeal board (UDAC) would have the right to summarily dismiss an appeal that does not present sufficient grounds to be heard. The onus is on the student to demonstrate that the sanction is disproportionate to the offense.

The question on the AMENDMENT was called and was DEFEATED.

Debate on the main motion (Section X. Appeals) continued.

Mr. Sinal explained that whereas a student charged with an scholastic offense may appeal for relief from the sanction imposed by a Dean, there was no similar provision in the draft Code of Student Conduct. It was for that reason that the ad hoc Committee proposes that the new ground for an appeal be introduced: "that the sanction imposed was not proportional to the type of misconduct."

Dr. Mercer raised two clerical issues that arise from the proposed changes to Section X. Section 1.a) is not a ground of appeal: it is an automatic right of appeal. The inserted phrase in Section X.3. -- "grant the appeal and/or vary the sanction under 1(b)Section X.3. -- is not workable. If the appeal is granted under 1(b) [that the sanction imposed was not proportional to the type of misconduct], then the sanction must be varied. Therefore, this should read "grant the appeal and vary the sanction ...".

Mr. Morgan recalled an earlier discussion about the draft Code of Conduct where it was suggested that the Code would provide guidelines, but that it was not expected that there would be a large number of appeals. He therefore speculated that the system is unlikely to "bog down" with numerous appeals, and if it were to do so, that would suggest a much bigger underlying problem.

The question was called and CARRIED.

S.01-62j Before presenting the motion, Mr. Sinal pointed out that the word "after" in this recommendation as it appears in the Committee's report should be "within".

It was moved by C. Sinal, seconded by J. Morgan,

That Senate recommend to the Board of Governors that a new Section XI. be added to the draft Code of Student Conduct as follows.

XI. Review of Code

The Board of Governors shall review the Code within a period of three years.

CARRIED

S.01-63 ANNOUNCEMENTS & COMMUNICATIONS [Exhibit VIII]

Announcements and Communications detailed in Exhibit VIII, were received for information.

ENQUIRIES AND NEW BUSINESS

S.01-64 Annual Community Meeting

Professor White reported that in his view °ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â's Annual Community meeting was a success. Dr. Davenport concurred that the meeting between °ÄÃÅÁùºÏ²Ê¿ª½±Ô¤²â and the London community held yesterday met with success and agreed to convey this praise to the organizers of the event.

ADJOURNMENT

The meeting adjourned at 5:30 p.m.

Signed by:

P. Davenport, Chair
J.K. Van Fleet, Secretary