Question(s) to be Determined: Whether the off-campus postings made on Facebook by a first year law student violated the University of Western Ontario’s Code of Student Conduct, and whether Mr. Zhang’s Facebook postings were protected by his right of free speech guaranteed by the Charter.
Findings:First of all, the Code of Student Conduct expressly states that it applies to off-campus conduct, and thus the committee specifically found that the posting was not protected by Mr. Zhang’s right to free speech as set out in Part I, s. 6 of the Code. Moreover, the committee found that the right of free speech guaranteed by the Charter did not apply to the Facebook message.
Reasoning:The Appeal Committee found that the postings constituted the type of speech that a reasonable person would view as intimidating or threatening, and therefore the right of free speech guaranteed by the Charter did not apply. In this case, it was concluded that free speech has its limits, including the making of threats and defamation of character.
The applicant was a first year law student at the University of Western Ontario. In the fall of 2007 complaints from students and professors regarding his in class behaviour came to the attention of the Dean of the Faculty of Law, Mr. Ian Holloway. They were concerned about Mr. Zhang’s conduct which included asking questions which were characterized by some as “unduly gruesome”, “macabre”, “frightening” and “graphic”, including highly inappropriate references to individual students. One such example involved a hypothetical question posed to a professor by Mr. Zhang in a criminal law class regarding a fellow female student becoming intoxicated and passing out, with Mr. Zhang positioning her in a way that made it very likely she would vomit, choke and die. Mr. Zhang asked the professor if this would amount to murder or manslaughter. Other students complained that while in the classroom, the applicant was watching videos posted on YouTube depicting terrorist activity and suicide bombings, including recommended methods to strap suicide bombs to one’s person. Also, while in class, he read texts about suicide bombings.
Mr. Zhang also controlled a Facebook page referring to himself as “Dr. Frank N. Stein”. He had 22 friends on Facebook. A number of his postings were disturbing, including references to “Dr. is eating babies”, “Go on a killing spree”, “Dr. is free to observe torture without criminal liability”, and “Dr. is learning how to get away with murder in his criminal law class”.
After considering the contents of a psychiatric report, and after consulting with the Chief of Campus Police, Dean Holloway permitted Mr. Zhang to return to law school at the end of November upon the strict conditions outlined in his e-mail, which stated:
“If there is any repetition whatever of the sort of behaviour that gave rise to my decision to suspend you in the first place, you will be immediately expelled from law school. If you have any doubt at all about the terms of our agreement, PLEASE LET ME KNOW WITHOUT DELAY for it will affect my decision to lift your suspension.”
On March 3, 2008, a fresh complaint was made about Mr. Zhang’s behaviour.
On March 20, 2008, the Dean informed Mr. Zhang in writing that he was expelled from the Faculty of Law. Mr. Zhang appealed the decision on April 2, 2008 and was granted the right to an oral hearing by the University Discipline Appeal Committee.
Mr. Zhang submitted that the Dean lacked authority to make a finding of misconduct or impose a sanction against him and that the finding of misconduct and sanction imposed were unreasonable or unsupportable on the evidence. He submitted that his Facebook postings were off-campus and therefore, beyond the reach of the University’s authority, and that in any event, his posting was protected by his right of free speech guaranteed by the Canadian Charter of Rights and Freedoms.
The Appeal Committee issued a judgment denying Mr. Zhang’s appeal on October 22, 2008:
• Among its findings, the committee concluded that “a reasonable person would find the message posted by Mr. Zhang disturbing and threatening and would cause fear and apprehension among his classmates, particularly in light of the incidents that occurred in the fall of 2007, which according to the testimony of the Dean, had created a “climate of fear” in the law school.” In addition, it was clear from Mr. Zhang’s fellow classmate Mr. R. that the message “upset and shocked him.” The committee found that the posting “did not amount to the intemperate remarks the first year law student posted in the heat of argument.” The committee specifically found that the appellant, prior to posting his message, considered whether the message would violate the Dean’s conditions and decided it would not.
• The committee specifically found that the posting was not protected by Mr. Zhang’s right to free speech as set out in Part I, s. 6 of the Code. The committee found that the section was not meant to permit the type of speech that a reasonable person would view as intimidating or threatening. The committee referred to Part V, section 2 of the Code which lists “any assault, harassment, intimidation, threats or coercion” and “knowingly creating a condition that endangers the health, safety or well-being of a person” as examples a prohibited conduct. The committee found that the right of free speech guaranteed by the Charter did not apply to the Facebook message.