National Post (National Edition)
Med school's repulsive pantomime of justice
Today's column has to start with a tip of the cap to my colleague Tyler Dawson, who has delivered a fine account of an extraordinary Manitoba Court of Queen's Bench case that was decided last week. It concerns a struggle between medical student Rafael Zaki and the University of Manitoba's Max Rady College of Medicine, which expelled Zaki in the summer of 2020 after about a year's worth of disciplinary procedures.
Zaki's offence was a total of three Facebook posts that attracted anonymous complaints from 18 fellow students: two were written in support of the right to bear arms, and the third was an extended, uncompromising anti-abortion monologue that seems to have touched on just about every pro-life argument ever devised, irrespective of consistency or convincingness. Some of my readers will, just from these words, recognize an undergraduate right-wing poop-disturber almost as well as I do. (I know, I know: look in the mirror, Cosh, and you'll still see one. Very droll.)
Our world would be poorer if universities became places where controversial ideas can't be road-tested in argument, and I suspect a lot more students are already escaping at the far end of the credentialing process with their prior prejudices happily intact. The problem is that medical students are under an obligation, from the moment their medical education commences, to behave in a “professional” manner. So a med student is (legitimately) bound by social rules that wouldn't apply to a history major or an aspiring fine artist, and these may (legitimately) extend to his social media use.
No doubt the people in charge of medical education in Manitoba — which has exactly one medical school — are well aware that plenty of their colleagues are gun-collecting pro-lifers, but pretty decent physicians anyway. They have the task of teaching the notion of “discretion” to people still at an age when this concept feels like a manacle. They have to prepare students for entering the clerical brotherhood we have made of the medical profession. It cannot be easy, and Judge Ken Champagne's decision shows that Max Rady College made a lot of back-channel efforts to try reconciling Zaki to his collegial responsibilities.
But the judge ruled against the school, and this happened entirely because the school completely misplaced justice in its passion to educate a wayward loudmouth student. Before this case arose, there was little case law in Manitoba over whether the Charter of Rights and Freedoms applies to statutory educational institutions, and if so in what manner.
Everything the school subjected Zaki to, which included the writing of five different drafts of apologies to fellow students, would have passed the court's procedural fairness test — except that the judge found, on studying the record, that the elaborate chain of discipline through which Zaki was passed was, well, mostly one guy, Ira Ripstein, who got worked up about the kid's crummy opinions.
When the med school started getting complaints about Zaki's Facebook activity, Ripstein and a second doctor approached him as friends, saying, basically: hey, you had better put this right, it's not cool. The pair got Zaki to agree that his language and approach had been unprofessional, and Ripstein sent Zaki advice on how he ought to word his apology.
Ripstein delivered the first draft to the “progress committee,” effectively the court of first instance on disciplinary matters, of which Ripstein was a member. When the committee rejected Zaki's series of apologies, because he wouldn't disavow the underlying beliefs and didn't impress with his “empathy,” it was Ripstein who reported back to the student on why the grovelling wasn't up to par.
Ripstein continued to act as a go-between, warning Zaki after the second apology that the committee was beginning to want him gone (and who would know better). He abstained formally from the eventual decision to expel Zaki, but co-authored its written decision. And when Zaki took the matter to an appeal panel, Ripstein — who had already served simultaneously as friendly counsel and hanging judge — turned prosecutor and argued the case for Zaki's expulsion. His argument was accepted without any further elaboration: no separate written reasons were given.
Real judges don't like repulsive pantomimes of justice like this, and it is hard to see why any of us ought to like them. The spirit of the decision is that the charter may not apply to statutory institutions with quite the full force that it does to governments, per se, but if they're going to behave as though Kafka was Holy Writ, the judiciary is darn well going to swoop in. One man's obtuse failure to realize he was playing three or four too many roles in a punitive disciplinary process may have made a little extra trouble for all Canadian universities: hard cases, as they say, make bad law.
From the doctor's point of view, Zaki was simply being told he was ineligible to be part of a priesthood, as some candidate priests probably are. (The fellow who overplayed his role as gatekeeper is part of an old and respected Manitoba family.) But a medical education is also just a technical credential, something one might pursue without any intention of ever practising medicine, or without any intention of doing so in Manitoba. And the Max Rady College is, again, the only place in Manitoba where one can get that credential.
Of course the charter should apply, but simple, unvarnished fairness would do nicely. I'm not sure whether 2021 is a bad time or the perfect time to tell physicians to get over themselves, but it's a complaint they have all heard, as their forerunners have for centuries.
MISPLACED JUSTICE IN ITS PASSION TO EDUCATE A WAYWARD LOUDMOUTH STUDENT.