The MacDonald Report: What Should We Expect From a Former Chief Justice and Law Students? Part 2

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 second 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.

THE MacDONALD REPORT: PROCESS AND FRAMEWORK

The Process

MacDonald applied a restorative process, specifically “ensuring that the participant students, as respondents to a complaint by the University, had the opportunity to be heard, to share their individual circumstances, and to explain the context of their participation in the letter” (Report, p.48) He did not apply a “restorative justice” approach, which takes imposing penalties (but not restitutional types of conduct) off the table, as long as perpetrators admit wrong-doing and take responsibility for their actions.

Restorative processes are not the same as restorative justice. It is worth quoting the Report to avoid any confusion in this regard (although as MacDonald admits, this approach leads to other confusions):

Taking a restorative approach did not entail using particular practices or processes as alternatives to the External Reviewer’s formal, and independent, role. Instead, it was a commitment to be guided by restorative principles in the way the External Reviewer, and the team, approached and carried out its work.

This is distinct from “restorative justice” as defined in Section 4.26 of the Code:

An alternative approach to resolving Complaints that focuses on addressing the harm caused by the breach and holds the respondent accountable for their actions. It involves engaging the complainant, respondent, and community in the resolution of the Complaint. Restorative justice processes take various forms and are always voluntary.

Importantly, in adopting the restorative approach for the External Review, it was not assumed that a breach had occurred.

The External Reviewer acknowledges the potential incongruity of adopting a restorative approach when all available disciplinary sanctions under the Code, up to and including expulsion, remained ‘on the table.’ This was a serious concern for many students and their representatives.

Tempting as it was to take certain sanctions off the table, doing so would have risked pre-judging the outcome of the External Review. Until the process concluded, it was important to leave open the possibility that a student may have flagrantly breached the community standards in the Code. For example, what if we heard that one student had forged the signatures of other students? Or that a student intended to harm their Jewish colleagues? (Report, p.54)

Since MacDonald did not apply restorative justice, the students did not have to admit they had breached the Code; signing the letter did not in itself constitute a breach of the Code without determining what the letter said and meant and taking into account other factors (such as the scope TMU’s documents give to freedom of speech). Consistent with MacDonald’s restorative approach, following considerable preparation and provision of information, he sent out the questions and topics that would be addressed during meetings with the students, “intended to reflect restorative principles by asking students to consider their relationships with others, the personal and professional impacts of the letter, and ways LASL could move forward” (Report, p.53).

Almost half of the students who signed the letter did so anonymously. Although the review team wanted to meet these students, they did not want to “out” the students. Accordingly, MacDonald’s general letter to the students about the review offered to meet with them; only one student who had signed anonymously accepted the offer. Although understanding why these students might not want to announce themselves, MacDonald conceded this “leaves a gap in the story”. In contrast, MacDonald did not accept anonymous submissions to the review. He sent a separate letter to each student who had signed the letter by name to arrange individual meetings, including discussion about an alternative dispute resolution format. (Report, p.50)

Two students who had requested a separate ADR process to precede the meeting with the team did not respond to the invitation to meet after MacDonald refused their request as not conforming to the process he had created. (Section 5.8 of the Code does contemplate ADR processes “on agreement of the parties”.) This would be separate to the review process created rather than an integral part of it. A request for ADR suggests (at least) an effort to avoid addressing liability, but in some way settling the complaint and thus avoiding any “outcomes” MacDonald might “assign” (using the language of the Terms of Reference).

In addition to the student signatories, the review team met with TMU and LASL administrators and various groups (including “the Muslim Employee Community Network; the Jewish Employee Community Network; and the Jewish Law Students’ Association, and … the Muslim Law Students’ Association”) (Report, p.49).

From the start, MacDonald steered away from anticipating applying punitive measures in the event that he found a breach of the Code, although he did not abandon them entirely at the outset. He was more concerned “to encourage and support people to participate in efforts to establish what happened and why, and to help chart a path forward based on individual and shared responsibility for what has happened and what needs to happen in future,” consistent with “the Code being educational and supportive, and ensuring accountability and fairness” and “the Code’s reference to ‘an anti-oppression and trauma-informed approach to ensure that all community members are treated with empathy, dignity, and care.’” (Report, 55) (My emphasis) This tends to give the review the veneer of an investigation rather than an inquiry into whether students breached the Code and this had an impact on the outcome.

First, the review team met with the named students who had signed the letter (34 out of 38 students met with the review team, with another making a written submission). As MacDonald invited them to do, students brought counsel or other support persons.

The team then met with (or received written submissions from) stakeholders, including 24 students who had not signed the letter (although I suppose MacDonald would not know if they had signed anonymously), 4 faculty members, other internal and external stakeholders (Arab Canadian Lawyers Association (ACLA); Canadian Muslim Lawyers Association (CMLA); Centre for Israel and Jewish Affairs (CIJA); Deborah Lyons, Canada’s Special Envoy on Preserving Holocaust Remembrance and Combatting Antisemitism; Amira Elghawaby, Canada’s Special Representative on Combatting Islamophobia; Independent Jewish Voices Canada; and The Hon. Harry LaForme and Mark Sandler). The British Columbia Civil Liberties Association (BCCLA) wrote to MacDonald. In addition,

The review team “requested meetings or written submissions from the Law Society of Ontario (LSO), the Ontario Ministry of the Attorney General (MAG), and the Ontario Bar Association (OBA). The LSO and OBA declined these invitations. MAG provided a written statement that is reproduced later in the report.” (Report, pp.58-60; see MAG statement at p.110)

MAG’s statement included the following:

“We can confirm that in responding to the October 20th Open Letter, the procedure MAG followed was fair, including, being transparent with students affected, providing an option to attest and/or opportunities for discussion, and providing clear and appropriate responses for each individual circumstance.” (Quoted at p.110 of the Report)

The Review’s Framework

Fundamental to MacDonald’s analysis, he identified the “overarching concept” for the review’s framework as “freedom of expression”. Indeed, it was more than that, as it turned out. MacDonald’s interpretation of the role freedom of expression plays at TMU – and thus at LASL – determined his conclusion that the students did not breach the Code.

This despite the fact that although freedom of expression is a “value and principle” under section 5.5 of the Code, the Discrimination and Harassment Prevention Policy, while identifying freedom of expression as a “cornerstone”, points out that “it is not an absolute right”. The Statement of Student Rights and Responsibilities notes the learning environment “safeguards dissent” but at the same time “is free from interference and disruption”.

It is crucial to understanding at least some of what happened at TMU to look at the TMU Senate’s 2010 Statement on Freedom of Speech and MacDonald’s analysis. The Report quotes it in full at pp.62-63. I consider it in condensed form in the interests of length.

The tone of TMU’s approach to freedom of expression is illuminated by the quotation from the Ryerson Invocation of 1990: “In the toil of thinking; in the serenity of books; in the messages of prophets, the songs of poets and the wisdom of interpreters; in discoveries of continents of truth whose margins we may see; we delight in free minds and in their thinking.”

TMU declares itself “unequivocally” committed to “the free exchange of ideas and the ideal of intellectual engagement within a culture of respect”. It states that members of TMU must have “the freedom to consider, inquire, and write or comment about any topic without concern for widely held or prescribed opinions. This right to freedom of thought and expression inevitably includes the right to criticize aspects of society in general and the University itself.”

Furthermore, “[TMU] does not avoid controversies, difficult ideas, or disagreements over deeply held views. When such disagreements arise within the University or within a broader social context, the University’s primary responsibility is to protect free speech within a culture of mutual respect.” MacDonald discusses the importance of the university as a “site of free expression” (Report, p.66; full discussion at pp.66-70)

All of this is, I believe, a good thing. At the same time, and appropriately so, the University maintains there must be recognition of the right of those with opposing views. There are limits to the right recognized in the Charter of Rights and Freedoms (“the Charter”) and “[t]he University may act when speech on campus is used in a way that is itself unlawful or prevents the lawful exercise of free speech by others.” (I return to this point in Part 3 of this series because it becomes a central element in MacDonald’s conclusion.)

TMU’s Free Speech Annual Report 2023 (required by the provincial government in its August 30, 2018 directive on “Upholding Free Speech on Ontario’s University and College Campuses”) states, “As a vital and dynamic university, TMU welcomes the opportunity to talk freely and openly. It is important that at a university, controversial subjects are discussed, attitudes are challenged, and that alternatives are suggested and considered.” The most significant limit appears to be if the speech “infringes on the free-speech rights of others”. (Quoted in the Report, p.64) (I discuss this further below.)

MacDonald quotes from various sources, including Independent Jewish Voices on Facebook (November 9, 2023), an opinion in the New York Times (April 5, 2024) and an open letter on TMU’s Centre for Free Expression’s blog (December 12, 2023) to set out the expectations ascribed to universities around free speech (Report, p.68; specific citations omitted). I note here how the letter illustrates how LASL conforms to these expectations:

“provid[e] students with the theoretical insights, robust analytic frameworks, historical context, and the space for discerning and well-informed debates”; [it appears LASL has provided students with partial insights, frameworks, context but because partial not the ability to use “space for discerning and well-informed debates”]

encourage students “to ask big questions about justice and the future of humanity, and to pursue answers however disquieting to the powerful”; [LASL has been successful in encouraging students to ask big questions and pursue answers disquieting to the powerful]

enable students to express opinions even if controversial, and to debate each other’s opinions; [LASL has enabled students to express controversial opinions, but does not appear to have instilled the ability to debate other opinions] and

help students work through their differences “no matter how passionately they are expressed and no matter how impossible a just solution may seem”. [efforts to help students work through their differences do not seem to have been successful by the time of the letter’s release, although subsequently, parallel with the external review, the school and students did arrange for discussion sessions]

The Report observes that “[m]ultiple stakeholders submitted that there can sometimes be less freedom for pro-Palestinian expression – in other words, that campus expression of Palestinian solidarity receives disproportionate scrutiny. This is often referred to as the ‘Palestine exception’, and is described as having a ‘chilling effect’ on campus expression and academic freedom” (Report, p.69; citations omitted). (I note that all the citations but two date from before October 7, 2023 and the two exceptions are about campus expression.) No doubt the response to the letter has reinforced this view among those who hold it.

Yet the extensive pro-Palestinian (and sometimes pro-Hamas) marches and the university encampments beginning almost immediately after October 7th have given prominence to pro-Palestinian speech and, despite the successful and unsuccessful efforts by universities to end the encampments, have given the impression that there is not a “chilling effect” now.

In the most recent court decision ordering the dismantling of the encampment at the University of Toronto, Justice Koehnen was clear that the students had the right to protest, just not to occupy part of the campus from which they excluded others.

He determined that the protestors within the encampment did not have “antisemitic intentions” when they used slogans that have been termed antisemitic (paras. 9, 109). Justice Koehnen refers to incidents that have been termed antisemitic, including the students’ letter at LASL, noting MacDonald’s conclusion that the letter was not antisemitic. Furthermore, he suggested that the protestors concerns of a “new form of McCarthyism” about the consequences to students who signed the LASL letter “are not without foundation” (para. 79). In short, the decision did not deny the right of the students to engage in pro-Palestine protests in other fora or by other means.

In Part 3 of this series (to appear on Tuesday, July 16th), I critique MacDonald’s analysis and conclusions and provide my own closing comments on the Report.

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