Risk and control in a tug of war

For the last 10 years, Queen's student leaders have been fighting to maintain control over the country's only peer-to-peer judicial system, while to admin it poses a reputational risk and liability

By: Mikayla Wronko, Features Editor

What the Coroner said

In the summer of 2012, Rector Nick Francis hung up the phone with Coroner Roger Skinner. He'd just learned something that would change his perspective on the student-run non-academic discipline (NAD) system, a system he'd been fighting Queen's for a year to preserve.

The NAD system at Queen's — turning 120 years old next year — is the only University sanctioned peer-to-peer discipline system in the country. Run out of the AMS, the students working in the Judicial Affairs Office try other students who've made non-academic offences through the Student Code of Conduct. The Judicial Affairs Office receives cases via other bodies at the University, from the Student Constables to Campus Security with these cases ranging from unruly conduct to harassment.

The basis of the NAD system are principles of restorative justice, which handles complaints with sanctions aimed at mediating the situation between the respondent and plaintiff. These sanctions can range from fines to essays to bans from the Tricolour pubs.

Partially arising from what initially began as a mock court used by upper years to swindle first years for beer money, the NAD system became a bonafide student judicial system in 1898 for both undergraduate and graduate students.
Despite its longevity, the right of student-to-student discipline has been challenged throughout the existence of NAD. Since the AMS is a corporate entity separate from Queen's, and run by students, questions of risk and liability regarding NAD have been raised by administration and external reviewers.

Francis' phone call with Skinner was one part of a years-long debate between administrators and student leaders over the future of the NAD system, one that began in 2006.

Following the 2005 Homecoming riot — the year a car was flipped and lit on fire — the then Dean of Arts and Science, Robert Silverman, put forth a motion with six other faculty deans in Senate to revoke the NAD system, placing jurisdiction over non-academic discipline in the hands of the principal. The motion was ultimately tabled.

Five years later, in the fall semester of 2010, the campus was shaken by the deaths of two first-year students. Cameron Bruce and Habib Khan were tragically lost to alcohol-related incidents, the catalyst for another re-evaluation of the NAD system.

In response to the deaths of these two students, the Coroner's Office launched an investigation to evaluate preventative measures related to the two incidents. The investigation was headed by Coroner Roger Skinner.

The outcome of the investigation was a letter to the University, known as the Coroner's Report. Released in May 2011, the Report outlined a set of recommendations with the purpose of addressing and preventing alcohol-related incidents on campus.

In the Report, along with suggestions of developing educational programs and resources aimed at managing drinking culture on campus, there was a recommendation calling for the removal of alcohol and other student health and safety concerns from the jurisdiction of student NAD system.

In a Queen's Gazette article following the release of the Report, Principal Woolf promised a commitment to "maximizing student safety and success at Queen's by moving "forward immediately in response to the Coroner's recommendations."

A phone call with Francis

Rector Francis describes the Coroner’s Report and the NAD system as one of the biggest issues he dealt with for the entirety of his three-year term.

When he was freshly elected in October of 2011, five months after the Coroner’s Report was released, Francis described the AMS offices as “absolutely chaos”, with people running around, papers flying out of folders and regular closed door meetings. Francis was thirsty for a project and wanted to help out with something worthwhile.

“I started with meeting the AMS executive on a regular basis, trying to get a sense of what was going on and they started to tell me that there was this Coroner’s Report that had come out a couple months before.”

From the student government’s perspective, the Coroner’s Report’s recommendation directly linking these two student deaths — both of which alcohol-related — to the NAD system didn’t make sense as the two student deaths had no perceivable links to any AMS club, organization or event.

Many students are probably unaware of how NAD ties into their experiences in Orientation Week, their experiences in residence and their experience in opportunities for leadership, Francis said.

As well, Francis stressed how hard 2011-12 AMS President, Morgan Campbell, and the rest of her executive team worked with the issue of NAD.

“All of those [Queen’s traditions] are intimately tied in the non-academic discipline system and that AMS year understood that so well and did such a marvelous job of defending it. I was so fortunate and grateful to have been a part of that.”

The Coroner’s Report recommendations spurred a reaction from the administration in the fall of 2011. The Non-Academic Student Discipline Review Committee was formed in Senate — responsible for investigating possible changes to the NAD system.

In all of those conversations he had with the administration concerning NAD, Francis said, there was a constant push to act quickly and to make the changes that had been written by Skinner.

“The rhetoric that we were hearing from the administration at the time concerning the Coroner’s Report was that it was critical that we move quickly and do the things that he says or otherwise, if we don’t follow through with his recommendations, then we will suffer an inquest from the Coroner which will be very, very bad.”

When student leaders asked why an inquest would be bad, the typical answer Francis said they’d receive was that it would be damaging for the University’s reputation.

Amidst the tension, Francis and AMS Vice President (University Affairs) Kieran Slobodin, crafted a set of compromises in an attempt to reach a consensus with the issue of NAD, but according to the former rector, it was becoming difficult to compromise with administration.

“The communication was breaking down between the two parties,” he said.

As the 2012 winter term was nearing completion, the 2011-12 AMS executive team had finished their tenure and a new executive was being ushered into office.

At this point, Francis had already been working on the issue of NAD for a year and described how hard it was to see the new executive discover how difficult it was to defend NAD.
“I remember sitting in my office and I’ll never forget them looking at me and just seeing in their faces just how tired they were and I don’t blame them at all because they were so excited to dig their teeth into their roles and working on this amazing system.”

“And they’ve been robbed of this experience because they’re finding out the [NAD] cases that should have been going to the AMS were somehow being circumvented and taken by the Student Affairs Office in the Provost’s Office.”

According to what The Journal reported in 2012, cases that should’ve been going through the AMS NAD system, specifically those involving blue light misuse, were being redirected to the Student Affairs Office.

It was the summer of 2012 when the new executive asked Francis if anyone had actually spoken to Skinner.

“I remember saying, ‘You know what? We should just call the Coroner,’” Francis said.

Francis said the AMS executive had initially laughed at him, but he’d already opened up Google and started to search for the number.

"At the time, we were really unsure of what would happen and they built it up in such a big way that I found myself feeling this hesitation and these nerves.”

Francis called the Coroner’s Office and was given Skinner’s personal cell phone number with minimal questioning. He introduced himself as a representative from Queen’s and said he had some questions about the incident with the two students and what came after with Skinner’s investigation.

“And he asked me if I was a part of the student media, I said ‘no’. He asked if I was a part of the student government, I said ‘no’. He asked if I represented the board, I said ‘no’. He asked if I was a part of the administration, I said ‘no’. He then asked, ‘Who the heck are you?’”

Francis said by the time he’d gotten halfway through explaining what a rector was, Skinner asked him what he wanted to know.

The first thing Francis asked was what an inquest entailed, only to learn that was the name of a Coroner’s investigation.

“The tone of conversations, me asking these questions that were questions we had grabbled with for a year because the administration had given us uncertain answers or sometimes no answers at all, his tone was ‘Are you an idiot?’ They seemed so obvious.”

Francis said he asked how Skinner had worked out his recommendations, only to hear that Skinner had worked with the administration through his investigation.

Francis said that when he told the coroner what he’d heard for the past year — namely that the recommendations to re-evaluate NAD had come directly from the Coroner — Skinner seemed baffled.

“So [Skinner] had done the inquest, the recommendations were jointly produced with the administration taking the wheel on it and him just sort of approving it,” Francis said.

“The third question was if these recommendations were binding, because the administration is telling us if we don’t follow through on these recommendations, we’re going to be in deep trouble with the coroner.”
Francis said he got a reaction he wasn’t expecting. “Nick, do you know what a recommendation is?”

After hanging up the phone, Francis said he was shocked.

“I was absolutely floored that I just had this conversation. I didn’t know what to do with myself.”

When The Journal contacted Skinner for this story, he explained in an emailed statement that the recommendations were the result of Coroner and police investigations and a Regional Coroner Review — a review conducted by Skinner with the assistance of a Kingston Police detective.

“The review included input from the families and the university, review of university records/policies and a review of policies and procedures from other institutions. The actual Regional Coroner Review meeting, held in April, 2011 was an opportunity for me and my investigator to gather additional information, for the university staff to answer our outstanding questions and for me to receive suggestions for preventative recommendations,” Skinner wrote.

“The recommendations I made in May, 2011, were written by me and were the result of my investigation. That investigation included input from the university as noted.”

Francis immediately told Principal Woolf and the AMS executive about his conversation with the Coroner. According to Francis, both parties were genuinely shocked about the nature of the Coroner’s recommendations.

After revealing his phone call — which had become almost like an open secret among student leaders and those involved in student politics — Francis withdrew his presence from the issue of NAD.

On Sept. 11, 2012, a matter of months after Francis’ phone call, a joint agreement — called a memorandum of understanding (MOU) — between AMS President Doug Johnson and Principal Woolf was signed. The consensus of the agreement was that the NAD system was worth protecting.

Addressed to the University Secretary, Lon Knox, the MOU reads, “The University recognizes the inherent value and efficacy of the AMS non-academic discipline system and unequivocally supports the underlying philosophy of peer-administered discipline.”

However, Francis said, even after the MOU, the relationship between the AMS executive and the administration wasn’t entirely back to normal.

When asked to provide comment, or to allow for The Journal to interview someone from the administration about how the Coroner’s recommendations were created, Queen’s Communications provided an emailed statement pointing to information available on their website.

They provided links to student non-academic misconduct statistics, the Student Code of Conduct, the Advisory Committee on Non-Academic Misconduct, the NAM sub-committee of the Audit and Risk Committee of the Board of Trustees and the MOU.

The emailed statement also read, “Queen’s University is committed to the well-being and safety of our students. The university undertook a review of its non-academic misconduct policies and procedures with the aim of improving the system to better support student safety, health and wellness.”

"No Means No"

The most recent case in which the NAD system posed a legal risk to the University was with the Gordon House Nine incident — otherwise known as “No Means No”.

In 1989, Queen’s historian Duncan McDowell, recounted, nine first-year boys put up obscene signs in the windows of the Gordon House residence. Created with masking tape, from outside of the street, one of the windows read, “No means tie her up”.

“We know when ‘No Means No’ broke out and the signs were put in, there was a kind of paralysis. The signs stayed up for several days, no one said get those things down,” McDowell said in an interview with The Journal. “There was a paralysis in the sense that the residence councils didn’t know whether these guys should be charged or whether they should just be subjected to some sort of education.”

A group of 30 or so female students, who’d dubbed themselves the Really Obnoxious Fucking Feminists (ROFF), locked themselves in the Principal David Smith’s office. ROFF staged a sit-in that lasted over 24 hours, as well as issuing a manifesto calling for proper punishment for the nine Gordon House students.

The “No Means No” incident garnered national attention, appearing on the front page of the Toronto Star and in The Globe and Mail. Alumni wrote letters condemning both the situation and how it was handled.

Woolf, who was a professor at Dalhousie University at the time, wrote to the Alumni Review blasting the University for how they handled the situation.
“Much as the actual behaviour of the residence men involved in this incident - which I recognize was likely only the work of a small group - sickens me, much as it did 14 years ago, when I was an undergraduate. I am more shocked by the apparent indifference shown by the administration in refusing to take a firm stand against such incidents, other than eventually having the signs removed,” Woolf wrote.

The “No Means No” incident brought forth questions of the capacity of NAD to address incidents like this and the reputational risk that accompanied student governance.

Another day, another report

Four years after the Coroner’s Report was released, yet another report challenged the NAD system.

In May 2015, Harriet Lewis, the University Secretary at York University, released the Lewis Report, detailing her review of NAD, which she identified as a “legal and reputational risk” for the University.

Lewis wrote, “In the course of my enquiry I came to appreciate the complications inherent in the issue of student behaviour and discipline at Queen’s. It is an institution which takes great pride in its long traditions which have fostered the deep engagement and loyalty of its students and alumni.”

“However, the changed and increased expectations of the role and responsibilities of universities held by students, parents, governments and society at large are requiring the University to re-evaluate some of these traditions and that is difficult.”

Lewis’ report identified a risk in not addressing the recommendations made in the Coroner’s Report, noting that the administration should support the rebuilding of the NAD system into a “clearer and more coherent system.”

Following the Lewis Report, the administration announced in late September 2015 the implementation of a NAD interim protocol, essentially replacing the NAD system while advisory committees reviewed it.

Principal Woolf, commenting on the NAD system at the time to The Journal said, the system, “will remain, but change is not optional, and the system has to evolve and be thought of in a different light given society’s expectations today.”

This interim protocol included the creation of a central intake body — an office that would collect all the complaints and assign them to the appropriate office.

Instead of the AMS NAD system managing and solving their own complaints and cases, the new central intake body would reallocate the complaint to the most appropriate body. Bodies that deal with non-academic cases outside of NAD are Athletics and Recreation, the Residences and the Student Conduct Office.

With the adoption of the interim protocol, The Journal reported that AMS NAD saw only three cases between May 1 to October 5, 2015, compared to the same period in the previous year, when the NAD system saw 29 cases.

The alumni who stayed and the ones who left

For many alumni, the change was significant due to the sanctions imposed on students by the NAD system.

Will Simonds, the Judicial Affairs Director for 2014-2015, wrote an opinion piece in The Journal claiming that the implications of the interim protocol would undermine the restorative principles that NAD stood for.

“Under the interim protocol, respondents are potentially vulnerable to being intimidated and coerced into agreements that may be excessively punitive and disproportionate to the violation they committed,” Simonds wrote.

Following suit, former AMS Presidents, Michael Lindsay, Tyler Turnball, Morgan Campbell, and former Rectors Daniel Sahl, Ahmed Kayssi and Grant Bishop wrote a collaborate piece expressing concern about the potential disenfranchisement of NAD.

"I think those questions are for current students to resolve in whatever ways students want to resolve them. I think they should be able to bring a system in any direction they want without alumni leading them to go one way or another,” said former AMS President 2015-16, Kannivanan Chinniah.

“When the curtain falls, you should leave the stage.”

In his experience, Chinniah said the AMS is very passionate about its student-run NAD system. It was almost a prerequisite that you had to know about the system before you ran for AMS executive.

It was Chinniah’s AMS executive that worked with the administration to execute the interim protocol’s terms.

While working with the administration on the NAD review, Chinniah said his AMS recognized that there are limitations to a student-run system, just as much as there are limitations to a University-run system.

Chinniah’s relationship with the administration contrasted the adversarial one in previous years, which he attributes to his AMS executive’s willingness to compromise.

“We enjoyed a very cordial relationship with the University based on shared interests,” Chinniah said.

“I think we went into it thinking that the AMS has an interest in preserving, not necessarily how things were, but preserving the framework that has served students. So, we went into the discussion with student interests top of mind, the University went into the discussion with the same mindset, and we found a common ground.”

The codified change of the status quo

On May 6, 2016, the Board of Trustees passed a new Student Code of Conduct, which changed NAD to the non-academic misconduct (NAM) system.

Along with this name change, the new Student Code of Conduct provided everything from to the scope of NAM, the varying severity of sanctions to new definitions, as well as a new outlined liability.

For Ryan Pistorius, the Judicial Affairs Manager for the 2016-17 year, the new Code led to several difficult conversations with Orientation Week leaders.

Pistorius recalled giving a presentation to incoming Gaels for Orientation Week about how the NAM system now recognizes underage alcohol consumption. After, Pistorius said that he got a question that he didn’t know how to answer.

“One of the Gaels asked me, ‘So, does that mean if our first years are intending to go out drinking, that we should tell them to not tell us?’ Which is kind of scary,” Pistorius said, “because it’s removing a support for first year students and that’s terrifying.”

The Orientation leader was questioning Section(iii)(5) of the revised Student Code of Conduct. The section states that student groups, student leaders or any identifiable spokesperson can be responsible for misconduct they give encouragement or consent and fail to discourage, prevent or report.

When it comes to the question of what an Orientation leader should do in regards to their freshmen drinking, Pistorius admitted that he was stumped.

“If someone comes to a student leader and says we’re doing this thing — is it better that the student leader recognize that this thing is maybe happening anyway and tries to make it safe or is it better that they report it to Security Services? What exactly is enough steps to discourage or prevent it?”
When the interim protocol expired, from the perspective of the University, the AMS didn’t have authority over NAM until the criteria for transition outlined in the Code of Conduct was followed, including the AMS signing an agency agreement — an agreement that would acknowledge the AMS’s agency to conduct their own peer-to-peer discipline.

From August 31, 2016 when the protocol expired to September 28, 2016 when the agency agreement was signed, the AMS had no jurisdiction to discipline students.

As per the new Student Code of Conduct, only the Student Conduct Office, Athletics and Recreation, Residence and additional University-identified authorized agents were able to receive cases.

The Society of Graduate and Professional Students chose to forgo signing the agreement, meaning that their student government is no longer governed by NAM.

The interim protocol’s central intake office was replaced with a permanent NAM Intake Office, which operates in virtually the same way as the previous intake office by redirecting cases.

Under the new system, there’s a roundtable of all the heads of the NAM units who meet four times a year, with additional meetings upon members’ request.

“Every time we meet, there’s a report from the Intake Office, which outlines the cases that have been received, kind of a very, very, very brief bit of detail on the case and then where it was sent — whether that was sent to the Student Conduct Office or back to the AMS or back to Residences,” Pistorius said.
“The majority of cases would likely be cases which used to come to the AMS, but we do see cases from Residences that have been redirected to the Student Conduct Office or even from Athletics and Recreation. Although those are few and far between.”

Pistorius said, though AMS NAM doesn’t know what cases it’s been denied, they at least know which cases they aren’t allocated, of those they originally intake.

“But for Campus Security, for example, they’ll send their cases to Intake and we’ll never see those unless we get assigned the case,” Pistorius said.

Pistorius said he hopes that by seeing the student system directly function, the University will be able to rebuild its trust in students

“I think that students have shown, since the beginning of NAD itself, that they will rise to the occasion when they’re given the power and the agency and the autonomy to do great things. That’s how NAD survived for so long. But at the same time, I think that the majority of the members of the administration weren’t out to get students, NAD or NAM. They were responding to practical concerns that had arisen over the course of the past decade or two.”

To Pistorius, if what the University really cares about is student health and safety, it shouldn’t matter who’s dealing with the misconduct system as long as they’re doing it to the best of their ability.

“More effective sanctions, which fix the harm to both the respondent and the complainant and the community — I think that we can do that better than the administration could,” Pistorius said. “Because students understand it better.”

The Queen's Journal

Writing: Mikayla Wronko

Illustrations: Stephanie Jiang

Production: Valentino Muiruri

Editing: Jane Willsie

Copyright © April 6, 2017