Pro-life med student a victim of bias: Judge

Expulsion failed to consider right to free speech

A Manitoba medical student who was expelled after failing to satisfactorily apologize for his controversial views on guns and abortion has been granted a new adjudication of his expulsion.

Rafael Zaki, a Coptic Orthodox student at the University of Manitoba who was supposed to graduate in 2022, posted three items on his Facebook page in February 2019. He was expelled in August 2019.

One year later, after losing two appeals within the university system, Zaki asked Manitoba’s Court of Queen’s Bench to review the decision made by the University Discipline Committee. Zaki said he was expelled “for holding conscientious and religious beliefs that abortion is harmful.”

The university, meanwhile, said that it must ensure professional behaviour and attitudes in order to be a doctor, and that he was expelled for failing to reach that standard “even after numerous attempts ... to assist (him) in remediating his conduct.”

Ken Champagne, the provincial judge in the case, found that there was a perception of bias and the university discipline system had failed to consider Zaki’s Charter rights to freedom of expression.

“The decision is quashed,” Champagne wrote, calling it “incorrect and unreasonable.”

Carol Crosson, Zaki’s lawyer, said the family had emigrated from Egypt because of concerns over freedom of religion.

“They came here to find freedom, and then their son went through this at the university,” Crosson said. “I’m very happy for the family that the trek to freedom has been positive in the final result.”

Two of Zaki’s Facebook posts were about the right to bear arms in the United States.

The last, a lengthy essay he wrote for Sunday school, was about abortion, entitled “Refuting the ‘Final Solution’ for Undocumented Infants: A Reconciliatory Formula.”

“The posts can be characterized as pro-gun and prolife,” Champagne wrote in his judgment.

In his essay, Zaki argued a doctor who provides an abortion — which he calls an “abortionist” — should be charged with first-degree murder, and mandatory referrals to a doctor who provides abortion services constitutes “forced labour.”

Zaki’s posts received 18 anonymous complaints to the university and he was brought in for meetings with top faculty members. Zaki agreed he had written the posts and that they were unprofessional.

He then made five attempts to write an apology letter regarding the posts, none of which were deemed satisfactory.

“Your fifth apology lacked sincerity, as no evidence of any personal exploration or self-examination of any of your attitudes was provided,” the 2019 expulsion decision states, according to court documents. “Further, you continued to apologize for the impact your article had on readers, suggesting it was their fault for being offended.”

Zaki appealed the decision through the university’s internal processes, but it was upheld in January 2020 and again in July 2020 by two other school committees. In spite of his expulsion, he was allowed to continue in the program until the final appeal was dismissed.

The University Discipline Committee, the final appeal within the university, found that the Facebook posts were misogynistic and had a negative impact on the learning environment, Champagne wrote.

The judge considered a number of factors, among them, whether or not a university can judge someone based on their Facebook posts (the answer is yes) and whether or not there was a sufficient degree of procedural fairness in the university’s discipline system.

The judge found the process was largely fair, except when it came to a perception of bias on behalf of the decision-makers.

And that, the judge concluded, was because of the role played by Dr. Ira Ripstein, the associate dean of undergraduate medical education, who was involved not just in the medical college’s decision to expel Zaki, but also in the final decision to affirm the expulsion.

“Failure to account for this serious concern is unreasonable and the decision cannot stand,” the judge wrote.

After Zaki sent his second apology letter, Ripstein sent him a letter saying it was “not clear to us that you have had any change of your opinion on sensitive topics,” and that the belief of the “Progress Committee,” which is responsible for student evaluation within the college, was that Zaki should be expelled. Three more times, Zaki sent in apology drafts.

“It is hardly surprising that they were all deemed insufficient, as the Progress Committee had already concluded Mr. Zaki should be dismissed,” the judge wrote.

Ripstein did abstain from the vote on whether or not to expel Zaki, “but that hardly matters,” the judge wrote, as Ripstein and another doctor jointly wrote the decision to expel him.

“(Zaki) describes Dr. Ripstein as serving multiple roles including, investigator, prosecutor and judge. That is a fair description,” the judge wrote.

When Zaki entered the appeals process, Ripstein was involved, writing a “lengthy, comprehensive and powerful written submission” to the next committee, arguing in favour of expulsion, and saying that “views based on misogyny and hate cannot be accommodated or condoned by the (medical school) program.” The committee dismissed Zaki’s appeal.

When the appeal went to the top committee at the university, the judge says, it “embraced the written submission of Dr. Ripstein.”

“Dr. Ripstein played a central role in the expulsion of the applicant,” the judge concluded.

“Failure to examine and address his role and the reasonable apprehension of bias is a serious shortcoming.”

The judge also found that the university discipline system failed to consider Zaki’s Charter rights to freedom of expression.

“He would not and could not change his deeply held pro-life religious beliefs,” Champagne wrote in his decision.

Crosson said there’s a patchwork of judicial decisions regarding the application of the Charter to university disciplinary decisions.

“For the first time in Manitoba, the Charter applies to disciplinary decisions made by universities in relation to students. That’s groundbreaking,” Crosson said.

Zaki’s case will be referred back to a new university panel, which must ensure Charter rights are respected, and that concerns of bias are alleviated.

In an email, the university said it is reviewing the decision and declined to respond to National Post’s questions.

Ripstein did not respond to the Post’s request for comment.