Human Rights Advisory Services

Human Rights Advisory Services
Human Rights Advisory Services

University of Windsor Judicial Panel

University of Windsor Judicial Panel Decision No. JPH-12/13-10 issued Nov 8, 2012 (PDF, 63KB)

Question(s) to be Determined: Whether a series of tweets made by a nursing student directed at a fellow student and a faculty member amounted to a form of harassment, and whether these tweets were protected by the Charter as a student's right to freedom of expression.

Findings:While the tweets were found to be uncivil in nature, none of the tweets suggested a course of vexatious comment or conduct, and thus did not rise to a "serious enough" level to constitute harassment. Furthermore, it was found that the fourth tweet was saved under sub-section 2(b) of the Charter as an exercise of the student's freedom of expression

Reasoning: It was concluded that the Charter rights of students should not be infringed upon when the have some grain of commentary or criticism, even if they are in poor taste, unless they interfere with the ordinary function within the university, affect the integrity of the university program or department as a whole, or affect the integrity of the university as a whole.

  • Tweets 1-3 were deemed uncivil but not harassment
    • Tweet 1: I'd throw my cellphone at her but my cellphone is more valuable #worthlessbitch
    • Tweet 2: Not the first time she got an STD
    • Tweet 3: Of course she's going to volunteer to spread her legs wide #sluttyhoe
  • Tweet 4 constituted Charter-protected speech.
    • Tweet 4: our teacher showed up to class dressed like a fool, and is acting like a child #sosick #typicaldayinnursing

The student was charged with "posting uncivil/harassing comments about a fellow student & faculty member on Twitter". This conduct is alleged to be a violation of the Faculty of Nursing's Social Media Policy, the Student Code of Conduct, Senate Bylaw 31, and the various Practice Standards set out by the College of Nurses of Ontario (as incorporated into the Faculty of Nursing's program). The student pled not guilty during her first appearance on August 7th, 2012, and the matter was set down for a one (1) day trial.

There was no dispute that these tweets were made by, and posted from the Twitter account of the student. The student's account was "open" - anyone could view her tweets, even if they were not following her. They were, for all intents and purposes, publicly available. In terms of timing, the tweets were all within a two (2) hour span, and either made during Health Assessment II, course #63-176, or the course preceding it. In our analysis, we will separate the tweets based on their intended audience.

The fourth tweet was directed at the Professor. It was crude, insensitive and failed to adequately capture the context of the Professor's conduct. On the evidence, the Professor had informed the class that she would be role-playing an individual with organic brain disease. She dressed and acted accordingly.

Given this background, the student's comments were particularly distasteful and facile. However, we are guided by the decision in Pridgen v. University of Calgary, 2012 ABCA 139, where the Alberta Court of Appeal held that the "Canadian Charter of Rights and Freedoms applies to the disciplinary proceedings undertaken by [a] University" (ibid. at para. 128). The fourth tweet, as we have labelled it, is therefore saved under sub-section 2(b) of the Charter as an exercise of the student's freedom of expression. The quality of the expression is not for us to judge, but there does appear to be some "peppercorn" of expression that is protectable. Even if the "peppercorn" is debatable, the benefit of the doubt must fall to the student.

The first three (3) tweets were all directed at another student in the student's class. This was also not in dispute. Like the fourth tweet, these tweets were also crude, insensitive and failed to adequately capture the context that gave rise to them.

Taken together, these tweets amount to uncivil conduct. Given the specific context, timing, and a contextual crude equivocations contained within them, they meet the threshold of being "uncivil".

However, we do not find that these three tweets amount to harassment. None of these tweets suggests a course of vexatious comment or conduct. Nor do any of the tweets, taken individually, rise to a "serious enough" level to constitute harassment. Indeed, we generally doubt whether a single tweet could ever rise to this level (given the 140 character length), but given the ability to post pictures or link to other sites, we suspect that a scenario could be imagined or arise.

Cases like this straddle a fine line between free speech and acceptable academic conduct.

Ultimately, the Orwellian threat of disciplinary charges for comments made on social media platforms (whether public or semi-public) that are alleged to be "uncivil", "unprofessional" or similarly nebulous grounds, should never take priority over students' right to freedom of expression insofar as those comments contain some "grain" of commentary or criticism - however crude, childish and distasteful - and unless that expression reasonably

Impinges upon:

a. The ability of another person to carry out their ordinary functions at this University (be it a Professor, administrator, student or otherwise);

b. The integrity of a particular University program or department, as a whole; or

c. The integrity of the University as whole. This last ground would be rare, but it is still imaginable.

There does not need to be direct intent for any of the aforementioned items, as intent can also be reasonably inferred from the surrounding circumstances. Recklessness, indifference or willful blindness might also suffice.