Mark Jones, Comments on the Principal’s Announcement re Legal Advice for Senate (17 April 2012)

As delivered in Senate, 17 April 2012, under “Business Arising from the Minutes” of 27 March 2012. Links have been added. The relevant text from the Minutes is given below.

I have three comments concerning the Principal’s announcement that “Justice Frank Iacobucci had agreed to take on the task” of advising Senate on its academic authority, in connection with the Senate Motion of February 28.

First, in an email to Jordan Morelli and me, dated March 30, the Principal has clarified that Justice Iacobucci “has been retained by the Board of Trustees, not the Senate.”  This does not seem to me to be in keeping with the terms of the Senate motion, which moves “that the Senate obtain independent legal advice from a law firm with experience dealing with public law issues” [emphasis added].

Indeed, given that the question being investigated has to do with a contest of authorities between the Board of Trustees and Senate, it seems inappropriate that Senate should be “obtaining independent legal advice” retained by the party with whose authority it is contending.

Second, the minutes record that the Principal has provided Justice Iacobucci with “Details on the circumstances leading to the suspension of first-year admissions to the BFA program in 2011 and of small concentrations in the Faculty of Arts and Science in 2009.”

Given that the Senate Motion asks for advice on more abstractly phrased questions, it is questionable whether this information about events of 2009 and 2011 is pertinent.  But if this information is presented to the Justice by Administration, it will be presented to him from an Administrative point of view.  I therefore ask that the Principal share with Senate the exact information as it was presented to the Justice, and that he give Senate an opportunity to present the same information to the Justice from a Senate point of view.

I would also note that Jordan Morelli and I wrote to the Principal on 30 March requesting to know what “documents and information” had been shared with Justice Iacobucci, and the Principal made no mention of this information at that point.

And third, the minutes record that Justice Iacobucci was given “the pertinent writings on these issues by [. . .] Diane Kelly,” but they also record the Principal’s refusal to share these writings with Senate itself.  Priincipal Woolf has reiterated this refusal in his email of 30 March.  I wish to state for the record that this refusal is inappropriate.   Given that the motion is that “the Senate obtain independent legal advice,” it is inappropriate for Senate itself to be disallowed to see documents that its legal advisor is considering.  Furthermore, given that Administration has been invoking Ms. Kelly’s legal contentions since April 2009 to justify circumscribing Senate’s authority over academic matters, it is inappropriate that Administration should disallow Senate to scrutinize the written arguments on the basis of which its authority has been circumscribed.

***

From Queen’s Senate Minutes for 27 March 2012:

The Principal concluded his report by announcing the outcome of the motion approved by Senate on February 28, seeking legal advice on the scope of Senate’s authority and its role in academic decisions., At the time, the Principal informed Senate that, while it does not have the authority to direct the Principal to seek legal advice or to assume the costs, he would present Senate’s wishes to the Board of Trustees on March 2. He reported that, in response, the Board approved the request and authorized him to proceed. He was pleased to announce to Senate that Mr. Justice Frank Iacobucci had agreed to take on the task. In the Principal’s view, Mr. Justice Iacobucci is well-placed to provide an opinion, given his experience in private practice, academia, government and the judiciary. He is currently Chair of the Higher Education Quality Council of Ontario. Mr. Justice Iacobucci will be provided with:

1. The February 28 Senate motion

2. The pertinent writings on these issues by David Mullan and Diane Kelly

3. Details on the circumstances leading to the suspension of first-year admissions to the Bachelor of Fine Art program in 2011 and of small concentrations in the Faculty of Arts and Science in 2009

4. Any other materials Mr. Justice Iacobucci considers to be pertinent.

Mr. Justice Iacobucci will be asked to provide advice on the relative delimitation of the powers and responsibilities of Senate, the Board of Trustees and the senior officers of the University, namely the Principal, the Provost and the Deans.

In response to a question from Senator Jones asking if Ms. Kelly’s opinion is publicly available, the Principal explained that it was a specific request on his part for legal advice from the University Counsel; therefore it is privileged information and will remain confidential.

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