The MacDonald Report: What Should We Expect From a Former Chief Justice and Law Students? Part 1

Preamble

When students at the Lincoln Alexander School of Law (“LASL” or “the school”) sent a controversial letter (“the letter” or “the October 20th letter”) to the LASL administration, a letter which became public, about the Israel-Hamas conflict, Metropolitan Toronto University (“MTU” or “the University”) filed a complaint under TMU Senate Policy 61, the Student Code of Non-Academic Conduct (“the Code”). The University appointed the former Chief Justice of Nova Scotia J. Michael MacDonald as the External Reviewer of the complaint. MacDonald released his Report (“the Report”) on May 31, 2024.

This is the first post of a three-part series, composed of the following posts exploring the MacDonald Report:

Part 1 (July 2, 2024): Introduction and Background, with particular reference to the students’ letter and the Code.

Part 2 (July 9, 2024): Discussion of the review process and Report’s framework.

Part 3 (July 16, 2024): Consideration of MacDonald’s analysis and conclusions, including scrutiny of the Report’s salient elements (interviews with students, whether the letter was antisemitic, freedom of speech and application of the Code) and my own Conclusion to the series.

INTRODUCTION

In considering the Report, I take issue with the approach the former Chief Justice took to his mandate and his failure to give credit to the students for understanding what they had signed. In short, I conclude that he let down the students who wrote and signed the letter, the administrators of the law school and university, the other students at the law school and the legal community.

As a former law professor, had I assigned my students to write an advocacy piece, I might have assessed it in much the same way MacDonald did the letter the students sent to various LASL administrators to help them improve their advocacy skills. However, the students’ letter was not an advocacy assignment, but a polemic. And MacDonald was not asked to improve their skills but to review the University’s complaint that the letter had breached the Code. As a law professor, then, I would assign the MacDonald Report if not a failing grade, no more than a D+: MacDonald’s analysis was faulty, failing to appreciate the nature of the letter, the full context of the Code and a more complex application of freedom of expression than he applied.

Most of the students MacDonald interviewed (about half the signatories and apparently none of the drafters) convinced him that they had been careless or hasty in signing a letter they had not read. They were more eager to “support Palestine”, to do what they considered “right” in the face of “injustice”, than as future lawyers to ensure they read what they signed and understood the impact of the letter’s full message. Commitment to social justice and willingness to stand up for what you think is right are admirable. However, even law students should ensure they know what they are doing when they express solidarity with a particular cause — or accept if they do not bring the skills they are learning to bear, they are accountable.

The Report is also incomplete, as MacDonald himself acknowledges, although this is not attributable to MacDonald. He was unable to interview the actual author(s) of the letter or the students who signed anonymously (except for one). No one was proud enough of their handiwork to come forward to claim authorship. It was assumed members of a small anonymous “collective”, the Abolitionist Organizing Collective [AOC], had drafted the letter, although their identity seems to be a secret. (I note, though, that the email the AOC sent to the administrators was also sent to seven members of the AOC, only one of whom signed the letter.) MacDonald’s assessments and conclusions were therefore based on a skewed population. The significance of this becomes clearer in Part 2 when I review the student interviews.

(“Abolitionists” are inheritors of those fighting for the abolition of slavery. Today they seek abolition of a range of practices, such as trafficking, the death penalty, prisons and the carceral approach generally and imperialism, among them. Abolitionist groups exist in many places.)

MacDonald took it upon himself to give the students advice about how they might have improved their letter, which he apparently viewed solely as an attempt to convince the LASL administration to take a particular course of action. He hoped to “prepar[e] [the students] for their future endeavours as lawyers, advocates, and activists” (Report, p.14); one thing he didn’t do to help prepare them, though, was to learn how to be accountable for their actions.

BACKGROUND

Following the attack by Hamas on Israel on October 7, 2023, including the murder, torture, rape and kidnapping of Israelis and citizens of other countries living and working in the area, on October 20th a member of the AOL at the LASL sent an email to the LASL dean, associate dean, assistant dean student programming and seven members of the AOC, stating that the AOC would be releasing an open letter. The tone and content of the letter prompted the University to file a complaint against the student signatories under the Code.

Normally, a university actor (such as the Student Conduct Office) would review a complaint, but since the University made it, the University appointed a designate, former Chief Justice MacDonald. The terms of reference for the review provided MacDonald would be the sole decision-maker; two lawyers from a prominent Atlantic law firm were also members of the review panel. (I am referring to MacDonald and the lawyers together as “the review team”.)

MacDonald stated his concern with both Hamas’s and Israel’s actions: “with heartfelt sadness, and appreciation of the underlying complexities, we acknowledge the devastating massacre that Hamas perpetrated on October 7, 2023 and the devastating war that Israel has executed since October 7” (Report, p.22).

The letter was prompted by an email the law school’s dean and assistant dean had sent to LASL’s students on October 11, 2023 that said, among other things, “’We are deeply troubled by last weekend’s horrific attacks, and the escalating violence, human suffering, and loss of life in Israel and Palestine.’” It continued, “’It is important that we reconcile deep empathy for Palestinian and Israeli statehood condemning atrocious attacks against innocent civilians’” and also acknowledged that “’conversations about this situation can be difficult and even painful, and that there are a variety of perspectives and beliefs within our law school community.’” (Quoted in Report, p. 28)

Obviously, the administration had tried to avoid making judgements about the different views among the students and to acknowledge the harm the ongoing conflict was having on both Israelis and Palestinians and the impact on both Gaza and Israel. This even handedness did not satisfy some students, however, who decried the “neutrality” of the email. As well, the Muslim Students Association wanted the administration to take a stronger stand against Israel’s campaign in Gaza. Some students who subsequently signed the October 20th letter thought the administration should have demanded a ceasefire and called for humanitarian aid (Report, p.84). And at the same time, “a few law students in the [AOC] were drafting the letter at issue in this External Review” (Report, p.29).

To clarify the timeline involved, the October 20th letter related to October 7, 2023, was sent to administrators on October 20th before Israel had begun its full-scale ground offensive on October 27th, although after Israel had undertaken bombing of and small incursions into Gaza; the University appointed MacDonald on November 6th; the review team interviewed students in the latter part of January 2024 with the war ongoing; and MacDonald released his report on May 31, 2024.

    The October 20th Letter and the Aftermath

The origins of the letter are somewhat murky. MacDonald concluded it had been written by a few students who were members of the AOC; despite efforts, the review team was unable to reach the AOC to identify or speak with them. There were rumours that one or more faculty members had assisted, but MacDonald dismissed this idea. Some students said they could not see the entire letter (but signed it anyway). There was also some confusion about whether it was to be sent privately to the LASL administration or to be made public, despite its being termed “an open letter”. (Report, pp.81-82)

A member of the AOC sent the following statement to the LASL administration on October 20th, in the afternoon:

We are reaching out to you as members representing the Abolitionist Organizing Collective (AOC).

The AOC is releasing an open letter this afternoon expressing unequivocal solidarity with Palestine. The letter condemns the LASL’s “neutral” position which implicitly denies colonialism and upholds racism and Islamophobia, and requests that the administration release a new statement to include the list of demands that we provided. We will be updating the letter as signatures roll in.

We ask that you uphold the LASL’s grounding pillars committed to equity, diversity and inclusion, by providing a public response to the letter by 5:00PM Friday, October 27th, 2023.

Regards,
AOC (Quoted in the Report, p.30)

The email contained a link to a Google document, and in the afternoon the link was posted to a student website meant to be accessible to law students only, accompanied by a caption:

“Hey everyone! SIGN THIS LETTER if you wish to demand that the LASL administration unequivocally stand in solidarity with Palestine! #FREEPALESTINE”, with multiple Palestinian flags, and with a link to the view-only Google Doc. (Quoted in Report, p.30)

For various reasons, the letter ended up being circulated widely. The entire letter is available at pp. 31-34 of the Report; however, here I condense it, identifying the most significant aspects.

The letter was entitled “Lincoln Alexander School of Law’s unequivocal solidarity with Palestine and list of demands for the administration”. The letter and demands were accompanied by footnotes. Note the letter referred to the school and was not limited to “students”, as if it were the position of the administration of the entity LASL. The letter “condemn[ed]” the LASL administration’s statement of October 11th (to which I referred above), describing it as “deny[ing] colonialism and uphold[ing] racism and Islamophobia”.

The AOC ‘’request[ed]” the administration release a new statement with six elements:

“1. Demanding an immediate ceasefire and end to Israel’s current genocidal campaign;
2. Demanding that Canada allow humanitarian aid into Gaza;
3. Demanding an end to the entire system of settler colonialism that has strangled Palestine for the last century;
4. Recognizing Palestinian resistance as fundamentally just and as a mean of survival for Palestinians;
5. Demanding a Canadian arms embargo; and
6. Demanding economic sanctions against Israel by pressuring Canada to withdraw from the Canada-Israel Free Trade Agreement (CITA).” (Quoted in Report, p. 33; citations omitted)

After salutations to the administration, a second heading stated “We Stand with Palestine”. At the outset, in a comment apparently quoting from an online opinion that rejects two states as a solution to the Middle East conflict and the existence of Israel as a nation state, the letter denied Israel’s existence as “a country”, calling it “’the brand of a settler colony’”. It treated the history of the area as beginning in 1948 and the British mandate “when the British unlawfully conceded Palestine’s territory”. It did not refer to the thousands of years before that or to Hamas’s and Arab countries determination to kill Jews and destroy Israel.

The drafters clearly did not intend to fall into the trap of “neutrality”, since they failed to acknowledge the right of Israel to self-defence or the legitimacy of its existence (indeed, it effectively denied both). There is good reason for that since the letter, in a sentiment the meaning of which was in dispute among students and MacDonald (and the external community), stated that “[t]he undersigned stand in solidarity with Palestine and support all forms of Palestinian resistance and efforts towards liberation” (my emphasis). (Those who believed this statement referred to something other than “all forms of Palestinian resistance” (my emphasis) justified this view on the letter’s description of Hamas’s actions on October 7th as “war crimes”, which they assumed would not be included in acceptable form of resistance, a view MacDonald ultimately appears to accept.)

The letter condemned any organization that itself condemns only Hamas’s “war crimes” committed on October 7th (the only reference to Hamas’s actions on that day) but fails to condemn Israel’s attacks on Palestine and killing of Palestinians, citing the period from 2008 to 2023. Despite referring to Hamas’s actions on October 7th as “war crimes”, it blamed Hamas’s actions on Israel’s “75 year-long systemic campaign to eradicate Palestinians” and thus blames in turn “all loss of life in Palestine” on Israel (emphasis in original). Since for proponents of the letter Israel is not a “country”, it must be Palestine, and therefore this could be read as the equivalent of blaming Israel for the deaths of 1,200 Israelis and individuals from other countries on October 7th (MacDonald does not consider this interpretation.)

The letter then invoked Canada as being “directly implicated in the violence taking place in Palestine”, given Canada’s reputation as “the architect of apartheid” (emphasis in original). The latter reference to apartheid makes a valid point, since South Africa has credited Canada’s reserve system for its own system of apartheid (indeed, I heard the South African ambassador make this very assertion many years ago, before the dismantling of South Africa’s system).

The letter closed by asking that LASL “uphold its grounding pillars committed to equity, diversity and inclusion” with a response by 5:00 pm on October 27th.

MacDonald noted that “[t]he letter obtained 74 signatures: 72 signatures from LASL students, 36 of whom signed anonymously or by initial; one signature from the AOC; and one signature from someone identified as ‘student, alumni’” (Report, p.34; emphasis in Report). It appears, although it is not clear, that the other members of the AOC did not sign the letter, signed anonymously or did not identify themselves as members of the AOC, despite having no difficulty in condemning the LASL administration and creating a furor that permeated the school.

According to MacDonald, not only the LASL administration, but also student leaders, including those from the Muslim Law Students’ Association, sought to find a way to have a “dialogue” about the issues and, notably, tried to convince the AOL to stop distributing the letter in its current form because doing so was “harmful”. The names of those signing with their names were made anonymous and the letter was taken down, posted again, and taken down again. All this occurred over October 21st-23rd. As of the latter date, the letter was no longer online; however, it was still being distributed as screenshots. By then, the letter had been widely circulated and was available through various social media. Students signing the letter who could be identified were being doxxed. (Report, p.34)

The LASL administration posted a response to the letter on October 23rd (it is also available in full in the Report, p.35). In no uncertain terms, the school disassociated itself from the students’ letter and condemned its “sentiments of Anti-semitism and intolerance”: “The letter does not represent the views of our law school or the many students, faculty, staff and community members that are committed to upholding our values of inclusivity, dignity, and respect. Statements that seek to promote or justify violence directly contravene these values.” It went on, “As educators and members of the legal community, we maintain our support for Israeli and Palestinian statehood and we stand with those who advocate for a peaceful, sustainable de-escalation and resolution of the conflict.” The statement also talked about the pain the letter had caused and LASL’s values.

Responses to the students’ letter also came from the community, including (from B’nai Brith Canada and others) that the students be expelled and announcements from some lawyers and law firms that they would not hire the students. The Ministry of the Attorney General in what I consider a highly questionable action required student applicants from TMU to attest they did not sign the letter (Report p.39). The Ministry’s attestation accused the students who signed the letter of using “their platform as students of the law to express antisemitic views, display intolerance, and excuse terrorism” (The Breach [December 21, 2023]).

Other lawyers promoted discussion; some of them also expressed concern about the letter. Yet another letter, signed by 722 lawyers, academics and other legal workers, expressed support for the students, listing the various negative ways in which the student signatories (and even other LASL students) were being treated, and ending “We will mentor you. We will support you. We are proud to call you colleagues.” (Report, p.38)

On October 27th, the University stated it would designate an external reviewer of the complaint, naming MacDonald on November 7th. On November 29th, the LASL dean announced a separate working group of faculty, staff and students.

MacDonald’s remit from the University was to determine whether “any TMU student who participated in the Open Letter has, in doing so, engaged in conduct that does not meet TMU’s community standards, contrary to section 6 of the [Student] Code [of non-Academic Conduct]” (Report, p.41) The complaint encompassed both students who identified themselves and students who signed anonymously, as well as the drafters. This gave MacDonald a wide scope to determine whether students “participat[ing]” in the letter breached any aspect of the Code; it also does not specify that students must have actually written the letter to fall within the review.

    Student Code of Non-Academic Conduct

TMU’s Student Code of non-Academic Conduct provides a “non-exhaustive list of the rights, expectations, and responsibilities related to non-academic student conduct” (my emphasis). The values in TMU’s Senate Policy Framework apply to the Code: academic excellence; equity, diversity and inclusion; mutual respect and shared success; sustainability; boldness; wellbeing; and access. The Code recognizes freedom of expression and the right to “engage in respectful debate and discussion”. Indeed, academic freedom is the “cornerstone” underlying the values:

“At the heart of what it means to be a university, academic freedom provides us with the liberty to think critically, explore and exchange new ideas, and evaluate and challenge norms and preconceptions. It is a cornerstone of knowledge creation. We unequivocally embrace freedom of thought and expression in support of teaching, learning and activity SRC [Scholarly, Research, Creative]. Building a community where we can speak, write, critique and otherwise articulate ideas and perspectives provides a foundation for all that we do at TMU.

Woven throughout these values is a commitment to examine and challenge the status quo [sic] and identify where and how we can do things differently. Going forward, we remain committed to being bold in our thinking, actions and decisions as an academic institution and in how we live our values every day.” (Report, p.18, quoting TMU’s Academic Plan 2020-2025, p.11)

The Code states, “Students at the University are expected to conduct themselves in a manner that supports the University as a learning, teaching, living, research, and work environment where the rights and responsibilities of all students, staff, and faculty are respected.” It is crucial to note that one of the Code’s purposes is to “ensure student accountability” (my emphasis).

The Code is to be read with other policies, including those dealing with sexual violence, domestic violence and harassment and discrimination. These policies “must work in coordination to promote a culture of consent and to confront all barriers to equity, diversity, and inclusion”. Examples of barriers are “racism, anti-Black racism, anti-Indigeneity, anti-Asian racism, Islamophobia, anti-Semitism, xenophobia, gender-based violence, gender inequity, sexism, homophobia, transphobia, colonialism, ableism, and ageism”.

As MacDonald noted, the law school identifies itself as premised on “four foundational pillars”: “equity, diversity, and inclusion; access to justice (including social justice); innovation and entrepreneurship; and academic excellence” (Report, p. 19). (Hence the title of the report: the optimistic and ambitious Strengthening the Pillars.)

The Code provides exhaustive provisions relating to complaints, which are under the purview of the Student Conduct Office. The university’s complaint complied with the definition of “complaint” under section 4.11 of the Code: “A Complaint of an alleged breach of community standards under this Code”. The onus (in this case as the complainant) is on the University to make out its complaint and the standard of proof whether a breach of community standards has occurred is a balance of probabilities (section 8.4 of the Code).

Also applicable is TMU’s Statement of Student Rights and Responsibilities. Particularly relevant student rights provisions include the following:

• enjoy all rights and freedoms recognized by law including, but not limited to, the Ontario Human Rights Code, the Canadian Charter of Rights and Freedoms, and the Freedom of Information Protection of Privacy Act [sic];
• pursue your education in an environment that is safe, secure, and conducive to learning. Students have a right to be treated fairly and not to be subjected to harassment, sexual harassment, discrimination indignity [sic], injury, bullying, verbal abuse, or any act of physical violence;
• The right to engage and participate in dialogue, examine diverse views and ideas. . .;
• . . . .

Among the responsibilities of students are the following:

• act consistently with the values of the College and community and follow federal, provincial and municipal laws as well as College policy;
• …
• act in the interest of honesty, integrity, and equality by treating all members of the community, including faculty, staff and fellow students, with respect;
• …
• consider and respect the perspectives and ideas of others, even when the student does not agree with their perspectives or ideas, provided that the speech or expression does not infringe upon personal rights and freedoms;
maintain a safe, respectful, and inclusive community by refraining from behaviour, which you know, or ought reasonably to know:

o obstructs teaching, learning, evaluation, administration, co-curricular activities or other College endeavors. (my emphasis)
o threatens or endangers the health, safety, well-being, or dignity of yourself or another person.
o Is unwelcome or persistent (e.g. personal harassment) which would cause another person to feel humiliated, demeaned, or intimidated [sic]
(my emphasis)

• familiarize yourself with and abide by all TMUIC policies, procedures, rules, or regulations ….;
• to take necessary steps to resolve academic and personal issues or challenges by communicating with the appropriate TMUIC staff in a timely manner, based on the process identified in the Academic Grievance Policy or the Student Code of Non-Academic Conduct;
• ….

(MacDonald discusses the Code and other related documents at pp.43 to 48 of the Report.)

In my next post, Part 2 of this series, I consider the process the review team followed in reviewing the letter and student involvement in the letter and the framework that informed MacDonald’s conclusions.

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