Whether or not bylaws have been violated in the Graduate Student's Association referendum is not merely a question of "yes" or "no". Since filing a bylaw violation complaint against the GSA executive, Graduate Student Ray Novak has been identified as leader of a de facto "no" campaign.
Neither Novak nor the CFS is registered with the CRO as an active "no" or "yes" campaign and either is required to be under the existing referendum bylaws. At other universities, both "yes" and "no" campaigns for a referendum are encouraged and even, in some cases, required to ensure all students have the best possible chance of making an informed decision.
"Once a referendum is announced, we give a 14-day period for both a 'yes' or a 'no' campaign to come forward," said Brad Wuetherick, Executive Vice-president of the University of Alberta GSA. "We allow both, but if nobody wants to run a yes or no campaign, we treat that as their prerogative."
Wuetherick went on to explain that both campaigns were limited to spending a maximum $150 on propaganda material.
"The main reason for that limitation is to prevent huge companies from coming in and overwhelming an election procedure," he said, adding his opinion that considering an article in local media as "active campaigning" was "completely illogical."
"There has been active campaigning by one organization and there's been completely inactive campaigning on the other side," added Novak. "If there's no 'no' campaign, the whole thing's a sham. If an article in the Gauntlet constitutes the 'no' campaign, the whole thing needs to be called off."
The GSA bylaws maintain that complaints regarding a referendum must be addressed first to the president in writing. If the matter remains unresolved after a period of 14 days, the plaintiff may request that the matter be referred to the Judicial Board, which is composed of members of the Graduate Representative Council. The process of choosing members of a judicial body from members of the legislative body is unique to the U of C GSA and, according to Koshan, strongly precludes the possibility of a fair resolution of the dispute.
"An argument can be made that there is a conflict of interest," she said of the GSA internal structure. "The people who are going to be deciding on the complaint may be the same people that the complaint is being made about. They must be impartial and unbiased, and there has to be a perception of impartiality."
Koshan explained that even if members of the Judicial board feel that they are able to deal objectively with the complaint, to an outsider, their position as members of the GSA precludes them from doing so.
Wuetherick agreed, explaining that the U of A GSA referendum process is under the jurisdiction of the CRO, who is completely impartial. In the event of a conflict of interest on the part of the CRO, the dispute is taken to the Election and Referendum Procedures Committee, which is a body completely separate from the GSA.
"Part of the reason for having a completely separate body is that if an complaint gets to that level, it's dealt with in as unbiased a manner as possible," said Wuetherick. "Executives are almost always going to feel strongly about referenda or elections, so it's very difficult to consider the executive as an unbiased source of opinion."
Koshan felt it would be difficult for Novak to obtain a similarly unbiased ruling on his complaint.
"I see this as very problematic," she said of the GSA judicial structure. "If this is merely an oversight in the bylaws, I think it's a very serious oversight. Conflict of interest and impartiality are very basic concepts and very important concepts in the judicial process and it would take a very strong argument to show there was a countervailing interest that should have priority over impartiality."
Novak indicated that if the judicial board did not adequately deal with his complaint, he would seek legal advice and withhold his CFS fees.
"If we're going to have a referendum, it has to be fair," he stated. "It not only has to be fair, it has to appear to be fair. I'm going to try to give the judicial board the benefit of the doubt, but from my perspective there's only one rule which has been blatantly violated so the ruling has to be that a 'yes' vote can't stand. When you're dealing with contentious issues, there has to be some sort of due process, and right now there isn't any due process."