Tuesday, November 15, 2011

Limited Accountability

Alas, the investigation into the events at McGill by the Dean of the Law School will be quite limited (the bold is in the original, I added the color):

To all members of the McGill Community.
Following events in and around the James Building on November 10, 2011, I have been asked to conduct an independent internal investigation to review what happened and to make appropriate recommendations regarding practices, processes and policies within McGill University’s control and jurisdiction.  The terms of reference for this investigation are contained in a letter from Principal Heather Munroe-Blum, dated November 11, 2011, that is attached herewith.
I wish to clarify the aim of this investigation, and to explain the process by which I intend to carry it out.
The ultimate purpose of this internal investigation is to allow McGill to learn from the events of November 10, 2011 and to take steps that would reduce the likelihood of a recurrence.  Thus the task is a fact-finding exercise that is primarily forward-looking.   The final report will describe the events of November 10 and will gather relevant information explaining how they came about.  Principal Heather Munroe-Blum has undertaken to make it public as submitted to her on or before December 15th, 2011.
The report will not include any nominative assessment of individual conduct or responsibility. There is good reason for this. In a society governed by due process and the rule of law, the allocation of blame for wrongdoings of any sort is subject to strict procedural safeguards.  Those procedural safeguards ensure that the rights of victims, complainants or witnesses are protected by competent authorities with full jurisdiction to address their situation.  The same procedural constraints ensure that those who might be suspected or accused of wrongdoing by competent authorities are presumed innocent and are given a full opportunity to respond to any allegations made against them.  
None of these procedural constraints and safeguards applies in the context of an internal investigation such as the one I have agreed to conduct.  I have no power to compel testimony or order the production of documents – indeed there is no legal basis to grant me such powers. As a result, I will not necessarily receive representations from all sides of every issue.  I have no authority to determine whether any persons committed wrongdoings or offences of any kind.   There are established procedures for such determinations within the University with regard to students, staff and university officials.  Further, I have no authority to assess the conduct of the police on campus and will not do so.  Jurisdiction for such determinations lies outside the University.
This will be the scope of my investigation.  I will proceed with care and integrity.  I ask for the goodwill of all members of the McGill community to assist me.
In this spirit, I invite written submissions from all members of the McGill community concerning the events of November 10, 2011.
Written submissions must be received by me before November 25, 2011.  Submissions can be made by reply to this electronic message, at djutras@mcgill.ca  .  Submissions may also be delivered in a sealed envelope marked confidential to my attention at the following address:
Daniel Jutras, Dean
Faculty of Law, McGill University
Room 15, Old Chancellor Day Hall
3644 Peel Street
Montreal, Quebec
H3A 1W9

I will keep all submissions confidential.  The content of all written submissions received, either electronically or in hard copy, will not be made public or disseminated or communicated to any person other than me, my legal advisor and my assistants. 

I may solicit interviews with members of the community who have sent me information or who can shed light on the events of November 10.   Interviews will not be recorded or transcribed.  I will take personal notes to assist with the preparation of my report, but these notes will not be made public, or disseminated, or communicated to any person other than me, my legal advisor, and my assistants.

Members of the McGill community may also send me photos or videos of the events of November 10 by electronic mail, at djutras@mcgill.ca .  I also intend to review relevant documents, written policies and other logs that may shed light on the events of November 10, 2011.

I have retained Me Giuseppe Battista as my legal advisor, and Ms. Kate Glover and Ms. Dia Dabby, two doctoral students in the Faculty of Law at McGill, will provide me with logistical support.

I sincerely hope all members of the McGill community will cooperate in this effort.

Daniel Jutras
Dean of Law
 Nice careful lawyer--I guess I understand that the Dean has little authority, although he seems more focused on his limits than on what he can do.  I guess he is lowering expectations.  I would have loved it if he had voluntarily took on a prof and a student to share the role (mostly the Principal's failure to reach out to the community).

I understand the desire to avoid casting blame, but, um, this was a huge disaster for a university, and so blame should be cast.  And if the Dean of Law does not do it, the students and profs certainly will.  A report that just issues recommendations for future events will likely not do much to satisfy the relevant communities at McGill although avoiding another mess like this is, of course, desirable.

What do the readers of the blog think?  That I am too critical and this is all we can reasonably expect?


Anonymous said...

I think you're being a bit too harsh on Dean Jutras. He has to be clear in setting proper expectations, otherwise he'll be accused of not doing a sufficient enough of a job.

He actually is legally constrained from compelling any evidence and he has not been given the resources or the support from the main administration to carry out a procedurally fair investigation. Rather, this was HMB's attempt at quelling the crowds by passing the buck to the Dean. And frankly, it's clear to us at the Faculty of Law that he was unwillingly conscripted to carry out this investigation.

All this to say that the administration should have hired an independent investigator from outside the University to investigate to matter in order to maintain the appearance of impartiality (I have no doubt that Daniel Jutras is capable of being impartial and he's quite an excellent jurist).

Steve Saideman said...

Thanks for your insights. I was not really blaming the Dean (I didn't call him a weenie). Just pointed out his constraints, more or less. Again, I wish that the Principal had put together a panel of reps from different parts of the university. Going outside has its own challenges, but that might have been ok, too.

Jacob T. Levy said...

One of the biggest constraints that binds us, but would not bind (say) a government in a similar situation, is labo(u)r law. If someone's going to be fired, that has to be kept hermetically sealed off from this kind of broad-ranging extra-procedural investigation. But that means the investigation can't cast blame on named persons in ways that could serve as part of their eventual firing. A necessary but huge limitation, and it means that there will have to be other procedures for holding named individuals accountable.