Decision of the University Appeal Board
November 20, 1998
MR. ADAM THRASHER (APPELLANT)
CAMPUS SECURITY SERVICES (RESPONDENT)
DECISION OF THE UNIVERSITY APPEAL BOARD
Prof. Jerry Leonard, Professor, Faculty of Agriculture, Forestry and Home Economics;
Adam Thrasher appeals to the University Appeal Board (the "Board") from the decision of the Discipline Officer, Dr. Gretchen C. Hess, dated December 15, 1997, which determined that Mr. Thrasher had violated s. 30A.3.2 of the Code of Student Behaviour (the "Code") of the University of Alberta and imposed a reprimand and an order that he make restitution in the form of a donation of $200 worth of food to the Graduate Students' Association food bank.
Mr. Thrasher appealed by notice on January 20, 1998. His appeal was as to the commission of the offence only; he did not appeal the severity of the penalty imposed.
No objection was taken by either party to the composition of the Board.
The Gateway student newspaper has published the cartoon series "Space Moose" on an ongoing basis for nine years. Adam Thrasher is a graduate student in biomedical engineering and the artist/author of the strip. On September 25, 1997, no Space Moose cartoon appeared in the Gateway. On October 9, 1997, there was a "Space Moose" cartoon, along with a notice that: "This week' s episode will make more sense if one reads the previous censored strip now available at: http://www.bme.med.ualberta.ca/~adam."
The cartoon published on October 9, 1997 is attached to these reasons as Appendix A. The previous cartoon available on the website, which is the subject of the complaints before the Board, is attached as Appendix B. A cartoon published on September 17, 1997, that was a part of the same storyline and was also available on the website, is attached as Appendix C. The website was located on the University computer system. It is on this basis that it is agreed that the publication of the cartoon was a "student affair" governed by the Code (s. 30A.1.1).
Commencing on October 15, 1997, eleven complaints were made to Campus Security Services regarding the cartoon. Nine complaints were received prior to Cst. Natalie Nielsen's recommendation that a charge be laid. Witness statements from these first nine complainants were included in the materials before the Board.
On October 22, 1997, Mr. Thrasher was advised in a letter from Burton M. Smith, Acting Dean of Students, that the University has "authority over the inappropriate use of its computer network" and that he should "remove all web pages of Space Moose Cartoons, all web pages pertaining to the sale of Space Moose products, and all file copies of cartoons and related data from [the] web site and accessible file directories by October 29, 1997." It is agreed that Mr. Thrasher complied with this demand within the stipulated time.
On November 4, 1997, Campus Security Services recommended charges under s. 30A. 3.2 of the Code of Student Behavior.
As indicated above, the Discipline Officer found Mr. Thrasher guilty of the non-academic offence of discrimination, and Mr. Thrasher commenced this appeal.
A differently constituted Board convened initially on June 11, 1998, at which point counsel for the Respondent requested an adjournment in order to arrange for an expert witness. This request was granted, and provision was made to ensure that the Appellant received adequate notice of the expert evidence to be called, as well as an opportunity to arrange for an expert to testify on his behalf.
The present Board convened on September 26 and 28 and October 8, 1998 to hear evidence, and on November 2, 1998 to hear oral argument. Written argument was also provided by each of the parties. Both parties were represented by counsel, Mr. Andrew Haynes on behalf of the Appellant, and Ms. Karen Munro on behalf of the Respondent The Respondent was also represented by Mr. Doug Langevin. The Respondent's witnesses were Constable Natalie Nielson of Campus Security Services, Shannon Sampert, Miriam Koene, Professors Linda Trimble, Joyce Green and Jane Arscott (complainants) and Professor Kathleen Mahoney (expert). The Appellant testified personally and called as witnesses Cindy Couldwell, Lauren Podlubny and Sarah Kelly (students), and Professor David Long (expert).
The Appellant and Respondent each provided written summaries of the evidence, which supplemented but did not contradict each other in material respects. The Board has relied on those summaries, as well as our own notes, when reviewing the evidence. We will not attempt to create yet another summary of the evidence herein. Instead, a brief description of the nature of the evidence will be given at this point, and more detailed references will be made as appropriate in the context of the discussion of particular issues.
One point that needs comment is the manner of the witnesses before the Board. Five complainants testified, and the sincerity of each of them is beyond doubt. Each of the women described a genuine reaction to the cartoon, and to the events that followed the laying of the complaints. Each found the cartoon extremely offensive, even hateful. Each felt fear, although in different degrees, in immediate reaction to the cartoon, and in the days that followed. It is also clear that it was not pleasant to be known as a complainant. A number of the women testified about reactions they experienced after being publicly identified as complainants, such as critical and in one case, obscene, e-mail messages, and derogatory comments, including "Thrasher got it right." In addition, a cartoon was drawn on a whiteboard on Professor Trimble's office door showing a male figure holding a knife pointed toward a female figure and thinking "Kill." This cartoon did not refer to the Space Moose cartoon, and may or may not be related to it, but did occur in the same time period. The publication of the names of the complainants seems to have occurred as a result of the decision of Ms. Sampert to give media interviews. Ms. Sampert indicated that she had discussed the matter with Professor Trimble and that they felt that nothing was happening regarding their complaints, and they thought they had to "go public." She gave an initial interview on CBC radio with Adam Thrasher, and subsequently responded to a large number of media inquiries. Mr. Thrasher placed the text of the interview and other reports on his website. Ms. Sampert attributed some of her fear to Mr. Thrasher having published her name on his website, but it is clear that he posted only information that was already widely publicly available as a result of her actions.
Adam Thrasher also testified and his manner was completely straightforward and credible as well. The Board is satisfied that he did not intend the cartoon to be discriminatory or threatening in any way.
There were two expert witnesses: Professor Kathleen Mahoney on behalf of the Respondent and Professor David Long on behalf of the Appellant.
Professor Mahoney is a law professor whose curriculum vitae makes clear her extensive familiarity with human rights law, including its "speech" aspects. She testified as an expert in the Collins v. North Shore News case, which will be referred to later. She has testified before legislative bodies regarding hate propaganda laws. Her area of expertise was described as the legal and policy considerations involved in balancing human rights protection and flee speech. Counsel for the Appellant objected that Professor Mahoney would be giving evidence on legal issues, including the interpretation and application of the Code, which is the task of the Board. The Board agreed to hear Professor Mahoney. We are not bound by the rules of evidence (Code s. 30A.9.5.c,d). We considered that Professor Mahoney was qualified to give evidence on the impact of discriminatory expression in society and on members of the groups protected by s. 30A.3.2, and also on the policy considerations that should be taken into account in developing and applying human rights protections that impose restrictions on speech. Her evidence was restricted so as to exclude any opinion on the application of the Code to the subject cartoon specifically.
Dr. David Long is a sociologist with an expertise in interpersonal interaction and community dynamics and structures. His studies have focused on minority groups and the media and community dynamics, as they relate to the scope and nature of flee speech within communities. He gave expert evidence and also non-expert testimony about his experiences in his class at the University in the period following the publicity about the subject Space Moose cartoon and the complaints brought against it.
The charge is that Adam Thrasher violated s. 30A3.3.2 of the Code, which provides:
3.2 DiscriminationIn interpreting this provision, and in particular, in applying it to expressive activity, regard must be had to introductory provisions in s. 30A.3 and s. 30A.l of the Code. The relevant provisions are:
During the hearing, the Appellant advanced a jurisdictional argument that the more "specific" introductory provision in s. 30A. 3 overrode the more "general" prohibition of discrimination in s. 30A.3.2, such that, if Mr. Thrasher's activity came within the boundaries of free speech, it could not constitute discrimination. The Appellant also argued that "free speech" was any speech not prohibited by federal or provincial law. The Board dismissed the jurisdictional challenge. We did not view the provisions as "specific" and "general," but as expressions of competing concerns to be balanced in the context of determining whether or not the offence had been made out. We also noted that we were not in a position prior to hearing all of the evidence and argument to determine whether or not the cartoon violated any law, and that both parties could address the point in final argument if they wished.
2. Relevance of Human Rights Jurisprudence
In final argument, the Respondent argued that the Code should be interpreted as prohibiting essentially the same matters as does human rights legislation, including that considered in Ross v. New Brunswick School District No. 15,  1 S.C.R. 825, aff'g  N.B.H.R.B.I.D. No. 1 (sub nom Attis v. New Brunswick (School District 15)). The Appellant agreed that human rights jurisprudence provided useful guidance, referring however to the provisions considered in Saskatchewan Human Rights Commission v. Engineering Students Society (1989), 56 D.L.R. (4th) 604 (Sask. C.A.) and Canadian Jewish Congress v. North Shore 1Free Press Ltd. (1997, B.C. Hum. Rts. Trib.).
All of the human rights provisions referred to differ from the Code provision in certain ways. The Ross case dealt with a prohibition against discrimination with respect to access to accommodation, services or facilities that are available to the public, and the school board's resulting obligation to provide a nondiscriminatory educational environment. It was held that this obligation was contravened by the presence of a teacher who made racist and discriminatory statements in published writings and public appearances outside of class or school activities. The Engineering Students and Collins cases both deal with prohibitions directed specifically at discriminatory publications. In the former case, the law prohibited any "notice, sign, symbol, emblem or other representation tending or likely to tend to deprive, abridge or otherwise restrict the enjoyment by any person or class of persons of any right ... or which exposes, or tends to expose, to hatred, ridicules, belittles, or otherwise affronts the dignity of, any person or class of persons ..." In the latter case, the law prohibited "any statement, publication, notice, sign, symbol, emblem or other representation that ... is likely to expose a person or a group or class of persons to hatred or contempt ..."
While there are differences in the laws, the Board accepts that useful guidance is to be found in all of these cases. The University, like the school board in the Ross case, has an obligation under provincial law to provide its educational services in a nondiscriminatory way. We accept that the Code should be interpreted so as to facilitate the University's compliance with this obligation. The latter two cases also deal with discriminatory expression and thus raise issues analogous to that before the Board. All of the decisions deal with the fundamental need to balance free speech and protection from discrimination. However, while there is useful guidance in these cases, it will be necessary to examine each of the arguments derived from the human rights case law and to consider its applicability to the Code.
3. Requirements of Section 30A3.2
Section 30A3.2 commences with a definition of discrimination, and then adds in subparagraph (b) the requirements that the activity draw a distinction between the complainant and others, which results in disadvantage or lack of benefit to the complainant not imposed on others, and which is based on an irrelevant personal characteristic, where context is essential in determining relevance.
It should be noted that the definition and the three requirements make no reference to the intention of the alleged discriminator. It is the effect of the alleged discriminatory activity that is of concern.
(a) Distinction/Grounds of Distinction
In their original statements and in their testimony before the Board the complainants indicated that in their view the cartoon singled out women like themselves - variously described as feminist women, women who are outspoken about violence against women, women who take part in Take Back the Night marches, or lesbian women (the "target group"). The identifying characteristics of the target group were related to the grounds of gender, sexual orientation and political belief that are referred to in the definition of discrimination.
The Respondent argued and the Appellant agreed that the cartoon drew a distinction between at least some of the complainants and others. The Respondent submitted that the relationship between the target group and enumerated grounds of discrimination was sufficient to show that the distinction was based on one or more irrelevant personal characteristics. The Appellant submitted that the personal characteristic which formed the basis of the distinction was participation in Take Back the Night marches, and that this was relevant to the political commentary which was at the heart of the cartoon. The Appellant argued that the Code "protects communications which are legitimately critical of particular political ideas or policies." This contextual argument is closely related to the Code's protection of free speech, and will be addressed at a later point. In any event, the Board agrees that the cartoon does not distinguish only on the basis of participation in the march, but more generally on the basis of gender, sexual orientation and political belief. We are satisfied that the references to these enumerated grounds of discrimination mean that the distinction was based on irrelevant personal characteristics.
(b) Disadvantage or Lack of Benefit
The next issue is whether the distinction results in a disadvantage or lack of benefit to the complainants which is not imposed on others. While s. 30A.3.2.b.ii refers to the complainants, the discrimination complained of relates not to them only, but to the target group as described above, so the disadvantage or lack of benefit should be considered in a group sense as well. We must also determine what is a disadvantage or lack of benefit in the context of the Code. This requires consideration of the definition of discrimination in s. 30A.3.2 and the introductory provisions in s. 30A.1, which in turn lead to the Code' s concern with freedom of expression, and the balancing of individual freedom with respect for the freedoms of others. Guidance regarding how to achieve such a balance is found in the human rights jurisprudence.
(i) Offence to the dignity of the person as a disadvantage or lack of benefit
The definition of discrimination in s. 30A.3.2 indicates that an act or omission is discriminatory when it "results in loss of or limit on opportunities to work or to fully participate in campus life or which offends the dignity of the person." The Respondent took the position that these were alternative forms of disadvantage, any one of which would indicate discrimination. Counsel for the Appellant took the position that offence to dignity alone would not be a sufficient harm. This is consistent with the holding of the Saskatchewan Court of Appeal in the Engineering Students case. The human rights law considered in that case prohibited representations that ridiculed, belittled, or affronted the dignity of persons. The court held that, in view of the purpose of the Act, the message "must not only ridicule, belittle, or otherwise affront the dignity of the person or the class, it must be such as to cause or be likely to cause others to engage in one or more of the discriminatory practices prohibited" by the Act.
Section 30A.3.2 must be read in light of s.30A.1, which provides that the offences in the Code describe "in general terms, behaviors which if left unchecked would, to an unacceptable degree, infringe upon the freedoms described above and thus threaten the proper functioning of the University" (emphasis added). The freedoms referred to are freedoms to participate in the activities of the University. This provides a compelling indication that the harm meant to be avoided by the Code has an institutional aspect, and supports the view that not any offence to dignity is a disadvantage sufficient to indicate discrimination. There must be a loss of dignity that would tend to threaten full participation in University activities by the target group. Given the Code's underlying purpose, the lack of such an effect would indicate that no offence has occurred.
While an effect on the functioning of the University is essential, we would not describe the effect quite as narrowly as did the Saskatchewan Court of Appeal: The question should not be simply whether the expression would tend to cause others to deny or interfere with the target group's participation in University activities, but also whether the expression would tend to deter persons in the target group from such participation.
(ii) Proof of effect
How may the effect of discriminatory expression be shown? This is the primary area of difference in the submissions of the Respondent and the Appellant. The Respondent proposed a "modified subjective/objective test," referring in support to the evidence of Professor Mahoney, who testified that it is important to "take seriously" the evidence of target group members as to impact as they experienced it. While reasonableness of the evidence is a consideration, she stated that it is reasonableness from the social and historical context of the target group that must be considered.
The Respondent also relied on the Ross case, especially the decision in that case at the first level, by the New Brunswick Board of Inquiry. There, the board stated (para. 84):
There is an onus on a complainant to show a prima facie effect that would be a logical result of a discriminatory action. In some cases the effect is not easily proven especially where the complainant is claiming an effect that is not readily discernible such as a loss of self-worth or dignity ... The determination as to whether there has been such an effect revolves around, firstly, an assessment of the credibility of the complainant's evidence. Secondly ... it is necessary to determine whether this effect is a reasonable reaction given the circumstances. In making this second determination, it is necessary to place oneself in the position of a reasonable person in the circumstances. It is not, of course, easy for an individual who is a member of a majority to understand the impact that certain actions may have on a member of a minority and care must be taken to ensure that the assessment is done from the position of the minority member.Arguing by analogy, the Respondent submitted that we need to make two factual determinations:
(1) "whether the complainants' evidence is credible as to the impact of the cartoon on their dignity and their involvement in the University community ...," and
(2) "whether the felt effect is reasonable (or not irrational) given the circumstances; that is whether the reaction is a reasonable (or not irrational) reaction for a member of the University community who is female, who is lesbian, or who identifies herself as a feminist."
The Respondent submitted that if these two findings of fact were made out, Mr. Thrasher would be guilty of discrimination.
As indicated earlier, there is no question that the complainants' evidence was credible in the sense that they sincerely felt that the cartoon assaulted their dignity, and they sincerely felt, although to different degrees, fear, which in turn affected their participation in University activities.
We attempted to apply the second branch of the test as submitted by the Respondent and found ourselves in an inextricable difficulty. There is more than one way to interpret or react to this cartoon. Further, the evidence before the Board made it very clear that there is more than one way in which women, including those who identify themselves as feminists, react to the cartoon. The Appellant's witnesses included three female students, two of whom described themselves as feminists. They indicated that they interpreted the cartoon as a critique of the Take Back the Night March and that neither they nor others to whom they spoke felt offended or fearful as a result of the cartoon. Dr. Long made this point as well. He testified that any expression is open to a variety of interpretations as people approach it with different perspectives, and that this is particularly noticeable in a university environment. This is also the case with persons from minority groups; one must be careful not to assume that there will be homogenous responses from people simply because they are labeled in certain ways, for example, as feminists. Dr. Long noted that in his class of 120 students, 10 or 15 students found the Space Moose cartoon offensive, 10 or 15 students found it hilarious and the rest had no particular reaction.
We don't see either the complainants' reactions, or these other reactions to the cartoon as "irrational." The Respondent did not suggest that the reaction of the Appellant's witnesses was irrational or that the complainants' reaction was the only rational response to the cartoon by women, feminist women or lesbians. The Respondent's argument was rather that because the complainants' reaction was one rational response to the cartoon, and because it came from members of the target group, we must conclude that the discriminatory effect of the cartoon and the resulting violation of s. 30A3.2 have been proven. If we accept this argument, and give effect to the complainants' concerns simply because they are not irrational, we would be allowing their reaction to govern the interpretation of the Code and to determine the scope of free expression in the University community. This cannot be correct. It would ignore the diversity of reactions not only within the University community, but within the target group. It would permit one rational, but minority, interpretation of a message to determine access to the message for the entire diverse University community.
In our view, the Ross case does not support such an approach. While the Board of Inquiry did advocate an initial examination of effect from the perspective of the target group, it went on to indicate that the complainant's evidence would give rise to only a prima facie case of discrimination, which could still be met by "evidence or argument as to any reason or cause for the actions" (para. 85). Further, when the board and ultimately the Supreme Court of Canada determined that Malcolm Ross' publications had the effect of creating a poisoned educational environment, they looked well beyond the fears expressed by students. A number of factors led the board to conclude that a discriminatory effect was proven, and led the Court to conclude that the board's finding should be upheld. There were the notoriety and nature of Ross' writings, which "denigrate[d] the faith and beliefs of Jews" and incited "contempt for those of the Jewish faith" (p. 18). The "actual environment in the school as established by the evidence" was characterized by "repeated and continual harassment in the form of derogatory name-calling of Jewish students, carving ... and drawing of swastikas... and general intimidation of Jewish students" (p. 19). Lastly, the connection of the expression and the poisoned environment was a reasonable inference because Ross was a teacher and teachers "occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions." The Court' s conclusion that the discriminatory effect of Ross' expression had been proven was essential to its further conclusion that his removal from a teaching position was a reasonable restriction on his freedom of expression.
The Ross case indicates that the complainants' evidence gives rise to only a prima facie case of discrimination. To make out a case of discrimination sufficient to meet the Appellant's claim of freedom of expression requires that this Board be satisfied that a discriminatory effect either has occurred or is reasonably likely to occur. The Ross case was exceptional in that the expression had occurred with sufficient regularity and notoriety that the Court was satisfied that it had taken effect. In many situations, any harm that may occur will be prospective. As the Code indicates in s. 30A. 1, the Board must inquire whether behaviours of the nature of this cartoon "if left unchecked would, to an unacceptable degree, infringe upon the freedoms" to participate in University activities.
The Appellant proposed a modified version of the approach in Collins in which discrimination would be shown if the expression would reasonably intimidate or deter the target group from participating in University activities, or if the expression would be reasonably likely to make it more acceptable for others to act in such a way as to deny or limit the target group' s opportunities to participate in University activities. The Collins case indicated that expression would not violate the human rights law unless it was reasonably characterized as hateful or contemptuous and was likely to have the effect of making it more acceptable for others to manifest hatred or contempt, but counsel for the Respondent adopted a disjunctive approach. The Board accepts the Appellant's submission as providing an appropriate method to determine whether the cartoon is the type of expression that, left unchecked, would tend to threaten full participation in University activities. Asking both questions posed by the Appellant addresses both issues identified in Part B.3.b.i of these reasons. Is it reasonably likely that expression of this type would tend to cause others to deny or interfere with participation in University activities by the target group? Alternatively, is the expression such as would be reasonably perceived as a deterrent to such participation by the target group?
The above issues must be determined in light of the relevant context. There are several relevant or arguably relevant aspects of the context, some identified in the case law, and others that were testified to by the expert witnesses in this case. These include the message or interpretation of the cartoon as ascertained by examining the challenged strip, as well as, arguably, the story of which it formed a part, and the publication history of the cartoon series. In addition, we need to consider the identity of the artist/author and the medium in which the publication occurred. We will also address the evidence relating to the actual environment at the University following the publication of the cartoon, and the social context of the target group.
1. Interpretation of the Cartoon
The subject cartoon is part of a storyline. One of the issues for the Board is whether we should consider the storyline, or the subject cartoon only. The Appellant argued that we should look at the storyline, and beyond that at the comic strip generally. The basis for this argument is that one should look at the context of the "audience or reasonably anticipated recipients of the impugned expression" and that the audience would be "generally cognizant of... previously published ... cartoons" and would "understand that the character of Space Moose is a satirical character who engages in outrageous behaviour in order to draw the reader' s attention to the absurd consequences of certain ideas." The Respondent's position as to the relevant context was not completely clear. The Respondent's expert did indicate that other cartoons in the series would constitute a part of the relevant context, but the complainants themselves were not familiar with the series and the Respondent relied heavily on their reaction to the subject cartoon alone. In the Board' s view, one should have regard to publishing context in a fairly broad way. The isolation of fragments of a message would not permit consideration of the true value of the expression and might unduly interfere with free expression. In any event, given the way in which the cartoon was distributed in this case, it seems clear that we must at least consider the strips before and after the subject strip, as well as the subject strip in its entirety. The strip following the subject strip was printed in the Gateway paper that included the notice of the "censored" strip's availability on the website. Further, anyone going to the website would have as easy access to the preceding strip in the story line, as to the subject strip itself. One would expect the potential audience to look at least at the storyline of which the subject strip formed a part.
The storyline appears in Appendices A through C, and I will not repeat all of it. It stags with Space Moose, holding a gun, and indicating that he is going to deal with "self-righteous feminists [who] are going to try and take back the night." The complainants focus on the first eight of twelve panels included in the subject strip, in which Space Moose and his cohort (Billy the Bionic badger) stalk and then attack women participating in a march. There is a graphic portrayal of violence. In panels nine through twelve a "superfeminist" (Dr. Long' s description) appears and captures Space Moose and Billy. The succeeding strip shows the captive Space Moose undergoing "rehabilitation" in a place "deep below the womyn's studies department."
The complainants and Professor Mahoney reacted to the depiction of stalking and murder, and characterized the cartoon as advocating a violent response to the "Take Back the Night" march. The message of the cartoon, as they saw it, is that women who believe rape is wrong and who try to challenge the status quo should be violently punished. While the Board accepts that the cartoon is capable of this interpretation, we note that it does not take into account the full context of the storyline. The complainants were asked to react to the last few panels and the subsequent strip, and indicated essentially that these panels did not alleviate their concerns. Their interpretation was based not on the whole storyline, but on the graphic depiction of violence in part of the subject strip.
The message as described by witnesses for the Appellant is that the Take Back the Night march is being criticized, perhaps because it excluded men, although this reason is not express and was not mentioned by all of the witnesses. Mr. Thrasher provided his own interpretation of the cartoon, which involved a reaction to the perceived "military" nature of the name of the march, where "taking" the night is akin to a military objective. Space Moose, who takes every idea to ridiculous extremes, goes to war and eventually becomes a prisoner of war. Mr. Thrasher's interpretation is referred to not because his intention is determinative of the issues before the Board, but simply as another way to read the cartoon. In Dr. Long's view, what made the cartoon satirical was the contrast between extremes. Space Moose is an extreme character who attacks everything; in this case, women on the "Take Back the Night" march. But Space Moose is overcome by an even more extreme character, the "superfeminist." Dr. Long noted that satire often deals with extreme positions, and is intended to provoke.
All of these are rational interpretations of the message of this cartoon, but the complainants' characterization does not account for the full storyline as well as the other interpretations. The nature of the expression in this case is very different from that at issue in Ross, which was open to only one rational interpretation: that Jews deserved and should be treated with contempt. Should a satirical cartoon that is interpreted by some persons as similar to hate propaganda be treated as the equivalent of hate propaganda, with a logically anticipated effect that is the same as hate propaganda? In the Board's view, it should not. While hate propaganda is not within the realm of legitimate free expression, criticism, even extreme criticism, of political positions or activities is within that realm. Satire is within that realm. In the Board' s view, when one considers the full storyline, the cartoon is reasonably characterized as criticism or satire. When considered in the context of the storyline, and even more so when considered in the context of the Space Moose character, who "attacks everything," this cartoon does not advocate violence against women. It would not reasonably be perceived as intimidation, and would not be expected, as a matter of logical inference, to have the same effect as hate propaganda.
2. Context of Delivery of the Message
An important consideration in the Ross case was the fact that the hateful message was delivered by a teacher. It was because teachers function as role models that the Supreme Court of Canada was prepared to infer a connection between Ross' out of the classroom expression and the poisoned educational environment. The importance of this factor is demonstrated by the Court's holding that, while Ross could be removed from his teaching position, his employment in a non-teaching role could not be made contingent on his refraining from further public statements against Jews.
The expression that is the subject of this case did not come from a teacher, but a student, so one would not expect it to have the same persuasive force. The fact that the Code is directed at student behaviour, in the Board's view, justifies a greater scope for free expression than would be the case if one were considering the actions of a faculty member or other "official" of the University. Firstly, the actions of an "official" would reasonably give rise to significantly increased concern about the nature of the University environment. Secondly, as pointed out by Dr. Long, a large degree of freedom is essential if students are to have the opportunity to air their ideas and, sometimes, learn from their mistakes.
The Respondent suggested that, while Mr. Thrasher is a student and not a teacher, in another sense the expression here was more directly connected to the educational environment than that in the Ross case. The expression occurred in the University environment, rather than in Mr. Thrasher's "private" life. But Mr. Thrasher's website, while technically a part of the University environment, is hardly the equivalent of a classroom. The cartoon was accessed only by those seeking it. The cartoon was not imposed on persons seeking to use University facilities or participate in University activities. It did not directly affect the University environment in a significant way, as a more prominent publication might. The website, while sufficient to bring the matter within the technical jurisdiction of the Code, is not a context of central concern in terms of impact on the University environment.
3. Evidence of Poisoned Environment
We do not rely on the nature and context of the expression only. Although these are not such as would lead to a natural inference that the expression would tend to cause others to deny or interfere with participation in University activities by the target group, there might exist evidence that would indicate this effect. Here we refer to the evidence relating to the actual environment at the University of Alberta. The only evidence provided on this point related to personal experiences of the complainants. As indicated above, one complainant received unwelcome e-mail messages and another heard comments including "Thrasher got it right." A threatening cartoon was drawn on a whiteboard outside Professor Trimble's office. The last incident may or may not have been a response to the Space Moose issue. These incidents occurred after the complainants were publicly identified as a result of the decision by at least some of them to "go public." It is clear that the events referred to were for the most part responses to the women as complainants. While such reactions were uncalled for and offensive, the Board is not prepared to lay them at the feet of Mr. Thrasher. It is not sufficient to say that the cartoon started the process, and therefore caused everything that followed. The complainants' experiences at the center of a University and media controversy about discrimination and free speech are not direct or natural consequences of the cartoon itself.
There was no other evidence that the actual environment at the University was changed in any way following the cartoon, or that it is generally hostile to women, feminist women or lesbians. Again, this case stands on very different footing from the Ross case, where convincing evidence of a poisoned educational environment was presented.
4. Context of the Target Group
The aspect of the context emphasized by Professor Mahoney was the lack of equality for women in Canadian society, and the continuing problem of violence against women. The Board accepts the vulnerability of the target group in this case. We understand that this awareness was at the forefront of the complainants' minds, that their fears were sincere and that their reaction to the cartoon was rational, given this perspective. But this context alone is not sufficient to outweigh the nature and publishing context of the cartoon and the lack of evidence of a poisoned environment, all of which support the Appellant's interest in free speech, rather than the complainants' concern about possible discriminatory effect.
The Board accordingly finds that Mr. Thrasher has not violated s. 30A.3.2 of the Code. We allow the appeal and set aside the decision of the Discipline Officer.
Dated at Edmonton, Alberta this 20th day of November, 1998.
June Ross, Chair, on behalf of and with the authority of the Full Board.