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Public Policy Sources 25:
Additional Problems With the Case

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Additional problems with evidence

Not having access to the original testimony and submissions, I cannot evaluate whether there were additional problems. Although audiotapes were made, the University refuses to let anyone other than their own lawyers listen to them. So we do not know how accurately the Panel represented what witnesses said. Still, we can see abundant misuse of evidence along with abundant evidence of prejudice against Liam Donnelly. There is good reason to believe that the Panel was equally prejudiced and incompetent in handling things that we could not see. Since the Panel imposed virtually no standards for rules of evidence, it is unlikely that it imposed any standards for examination and interpretation of witnesses.

Another very suggestive problem is that the Panel Report never systematically lists the evidence used in their report in any way, even though such lists were usually provided in other cases, and Braha recommended such listing in her training lecture (Braha, March 1997). Despite this anomaly, John Stubbs did not look at the original evidence, claiming it was not his job, even though in another case he claimed to have read original evidence (Fournier, June 11, 1997; SFU FOI, Sept. 3, 1998, doc. 11, p. 1). Of course, with the widespread secrecy, Donnelly would not have known that these actions were inconsistent with procedures in other cases.

Contradictions

SFU had in its possession information indicating that Marsden was not a trustworthy witness. In the arbitration the SFU representatives admitted that

The findings of the harassment panel were based on Ms. Marsden’s credibility. Inconsistencies between her statements before the panel and her response to Mr. Donnelly’s harassment complaint cast doubt on her credibility. (Kelleher, July 23, 1997)

Despite the moderate wording, the clear implication is that both mediator and SFU concurred that these problems were of such a magnitude as to defeat any case against Donnelly. Hence, these admissions are decisive against anyone defending SFU. But we can go further.

The visibility, the number of people involved, and their reputations make the possibility of conspiracy in this issue unlikely. The statement refers to a specific document that is in the hands of a number of people with varying interests. David Gagan, Gregg MacDonald, attorney Gabriel Somjen, and mediator Stephen Kelleher would not leave their reputations available for shredding at the whim of Marsden, Stubbs, and Braha. Kelleher specifically claimed to have read the document in question, and he works in a field where his reputation is crucial to his future success.

Still, it is somewhat unsatisfying to rely strictly on such secondary inferences. Moreover, some might wonder at how significant the contradictions must have been. Therefore, I will here describe just one of the "contradictions" in some detail. Although some elements of this incident have been reported in the press, the basic importance is being publicly revealed here.

Donnelly in his November 23, 1995 complaint of harassment against Marsden, referred briefly to his having received and being billed for an unordered subscription to Playboy magazine. At that time, Donnelly did not specifically allege that Marsden had placed the order. He merely indicated that this was one of a number of suspicious things that had happened. To this item, Marsden had the following to say in her Dec. 2, 1995 response to Donnelly’s complaint:

Playboy subscription (!)

When I saw this item I have to admit that must have laughed for about a minute. It provided excellent comic relief to a serious situation. I can guarantee that I am not responsible for this. Although I know Liam’s residential address (from being to his house several times), I don’t know his postal code. Also, I noticed that his address is wrong on the statement (which was already circled on the copy that I received).

Then, in her opening statement to the Panel on May 9, 1996, Marsden alluded to the Playboy subscription incident as follows:

. . . I also filled out a subscription to Playboy magazine in Liam’s name with the hope that he would be able to take out his sexual frustrations on the magazines instead of on real women.

In the first statement, Marsden denied the action vehemently and elaborately. Moreover, she also made up another lie (claiming not to know Donnelly’s postal code) to support the false denial. Thus, Marsden lied blatantly in her submission to the harassment office, apparently in the erroneous belief that the forgery could not be traced. The obvious reason for the new story was that the forgery had been traced.

This alone should have blown the whole case.23 Moreover, this is only one of a number of cases where Marsden was or should have been caught lying, simply on the basis of her own statements. It would seem that Anita Braha in particular has much to answer for here, since she had undoubtedly read the Dec. 2 submission, and both read and listened to the May 9 statement.

The contradictions reside in materials and testimony provided by Marsden. No evidence from Donnelly, no observation of demeanours, and no cross-examination was necessary. All that was required was for someone to review Marsden’s submissions to determine whether her representations were consistent with each other and the findings of the Panel Report. There was no rule preventing this step, and normal prudence and fairness would dictate that such a search should have been conducted.

The contradictions were not hard for a competent searcher to find. Loryl Russell became Donnelly’s counsel in late May 1997 and despite being otherwise busy, she presented the contradictions to the SFU mediation team in early July of the same year. In contrast, SFU possessed all the information for nearly a year before Donnelly was fired. The most charitable interpretation is that those dealing with the case never found the contradictions because they never looked for them.

Procedural anomalies

Improper Panel Selection Procedures

The so-called Investigative Panel lacked standing because it was illegally appointed. Stubbs and O’Hagan had ignored their own rules for over three years (from late 1993 through 1996), so that the Donnelly Panel and 10 others were appointed by procedures that substantively violated the rules. This was admitted by SFU in October 1997 in a press conference by Jack Blaney, SFU president (SFU NR, Oct. 24, 1997). The result was that all adverse findings were thrown out, and solutions were obtained by direct negotiations between the respondents and SFU.

Although the SFU announcement was made in October 1997, there is convincing evidence that the problem was known to Stubbs and others much earlier. The Olewiler Report, an SFU internal investigation, shows that problems were corrected, starting in January 1997 (Olewiler, Oct. 20, 1997). As a result, all tribunals appointed during 1997 were appointed according to the rules.

To correct all the appointment procedure problems, a number of actions had to be undertaken, including the election of the person who was to appoint the Investigative Committees. Since Stubbs knew how the previous tribunals were selected, he had to know that these so-called Investigative Panels had been formed in clear violation of the rules. In the Donnelly case, the anomaly was particularly serious since Marsden’s self-styled "best friend" had selected the Panel members (see "The Marsden-O’Hagan Relationship").

New Charges

The Panel allowed Marsden to introduce new charges during the hearings, which violated Policy provisions that required advance notification on all charges and made no provision for new charges (SFU Harassment Policy, Jab. 22, 1991, 9.1). Further, the introduction of new charges during a trial violates a fundamental right of accused persons. Not content to leave the sport wholly to Marsden, the Panel even made up a "poisoned environment" charge of their own (PR, p. 19). Yet there’s worse. From the Panel Report we read the following:

Ms. Marsden also states that in conversation with Witness #6 on June 28, 1996, she was told that other lifeguards have been covering for Mr. Donnelly at workouts. (PR, p. 18)

This gem of evidence is supposed to show that Donnelly was spending more time in planning his fiendish persecutions of Marsden. And of course, this point, such as it was, was strictly hearsay, since Witness #6 never testified to this "evidence" herself. But let us move on to something more relevant to the issue raised above.

The Panel Report frequently refers to a document called "Exhibit #36" in which Marsden charged Donnelly with additional ongoing acts of harassment (PR, p. 18). Yet the last hearing was held on June 27, 1996, one day before the described conversation. Thus, the new charges in Exhibit #36 were submitted after the last hearing, so that no hearings whatsoever were held on these charges (see also "Intimidating Behaviours"). Donnelly was apparently not even informed of these charges until after he was found guilty of them. Despite such a palpable violation of due process, Stubbs upheld Donnelly’s conviction on these charges (SFU FOI, Sept. 3, 1998, doc. 20, p. 11).

Marsden-O’Hagan Relationship

The director of the Harassment Office, Patricia O’Hagan, and Rachel Marsden developed a close personal relationship (which has been variously described by the parties concerned) despite O’Hagan’s well-recognized responsibility to remain neutral. When whistle-blowers alerted Stubbs to this problem, he devised an elaborate cover-up, in which SFU put out false information about the reasons for O’Hagan’s departure and paid for her silence. Even worse, he concealed the problem from Donnelly, while claiming that scrupulously fair procedures had been followed.24

Advance Distribution to Marsden

Marsden was given an advance copy of a preliminary version of the Panel Report, in clear and obvious violation of the rules. This procedural violation has been admitted but never explained (SFU NR, July 14, 1997). Further, Stubbs concealed the violation from Donnelly throughout the decision process, and Braha gave the press a version of the history of the appeals process that conspicuously omitted this known procedural irregularity (Braha, June 6, 1997).

Conflict of Interest

As Stubbs acknowledged, due process required that he perform an independent review of the Panel’s findings. Yet in this review he was advised by Anita Braha, who as legal adviser to the lay Panel had guided and substantially influenced the process whereby Donnelly was found guilty. Thus, Stubbs allowed Braha to advise him on the acceptability of her own work. This obvious conflict made a mockery of Donnelly’s right to an independent review.25

Private Correspondence

Stubbs concealed from Donnelly a letter from Marsden concerning the problems arising from the efforts of Stubbs to limit her relationship with Patricia O’Hagan (Jimenez, Oct. 21, 1997; Horwood, Oct. 21, 1997). In addition to being generally improper, such concealment was materially wrong because: (1) it allowed Marsden to make secret arguments and threats; (2) the letter revealed actions that were prejudicial to Donnelly, who had the right to challenge them; (3) the letter contained material that challenged the view of the Panel that Marsden was a highly rational person who adjusted readily to the break-up of relationships (PR, p. 16).