DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kernaghan, 2003 ONOCT 27

Date: 2003-10-07

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and

the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF discipline proceedings against

William James Kernaghan, a member of the Ontario College of Teachers.

Heard: September 15, 2003

PANEL: Marilyn Laframboise (Chair)

Janet Cornwall

Dick Malowney

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

• and -

WILLIAM JAMES KERNAGHAN

(CERTIFICATE #318854)

REASONS FOR DECISION, DECISION AND ORDER (S)

David Leonard, McCarthy Tétrault, for Ontario College of Teachers, assisted by Trevor Evans, Senior Law Clerk

Joel Levitt of Fryer Levitt for William James Kernaghan

The Honourable Lloyd Houlden, Independent Legal Counsel

William James Kernaghan was not present.

This matter came before a panel of the Discipline Committee for a hearing on September 15, 2003 at the Ontario College of Teachers at Toronto.

A Notice of Hearing, dated May 15, 2003 was served on William James Kernaghan, requesting attendance before the Discipline Committee of the Ontario College of Teachers on June 10, 2003 to set a date for a hearing, and specifying the charges.

William James Kernaghan was not in attendance at the hearing. Proof of service of the Notice of Hearing was presented and accepted by the Panel. (Exhibit 1)

The Allegations

The allegations against William James Kernaghan in the Notice of Hearing dated May 15, 2003 are as follows:

IT IS ALLEGED that William James Kernaghan is guilty of professional misconduct as defined in sections 30(2) and 40(1.1) of the Act, and/or is incompetent as defined in section 30 (3) of the Act, in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students physically, sexually, verbally, psychologically, and/or emotionally contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsections 1(14) and (15);

(d) he contravened laws and that contravention is relevant to his suitability to hold a Certificate of Qualification and Registration contrary to Ontario Regulation 437/97, subsection 1(16);

(e) he contravened laws, the contravention of which caused students who were under the Member’s professional supervision to be put at or to remain at risk contrary to Ontario Regulation 437/97, subsection 1(17);

(f) he committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);

(g) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19);

(h) he engaged in sexual abuse of a student or students of a nature defined in sections 1 and 40 (1.1) of the Act; and

(i) he displayed a lack of knowledge, skill or judgment and/or a disregard for the welfare of students of a nature or extent that demonstrates that the Member is either unfit to carry out his professional responsibilities or that the Member’s certificate should be made subject to terms, conditions or limitations.

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. William James Kernaghan, (the “Member”), is a member of the Ontario College of Teachers.

2. At all material times the Member was employed by the Toronto District School Board as a teacher at Bowmore Road Public School (“Bowmore School”), Sprucecourt Junior Public School (“Sprucecourt School”), and Glen Ames Senior Public School (“Glen Ames School”), in Toronto.

3. During the school years between approximately 1972 and 1974, student no. 15 was a 9-10 year old Grade 4-5 female student in the Member’s class at Bowmore School, which is located at 80 Bowmore Road, Toronto.

4. During the 1974-1975 school year, student no. 1 was a 9-10 year old female student in the Member’s Grade 4-5 class at Bowmore School.

5. Between approximately 1976-1978, while the Member was teaching at Bowmore School, student no. 2 was a female 12-13 year old student at Fairmount Park Senior School (“Fairmount Park School”), which adjoined Bowmore School.

6. During the 1977-1978 school year, student no. 3 was a 10-11 year old female student in the Member’s class at Bowmore School.

7. During the 1977-1978 school year, student no. 16 was a 10-11 year old female student in the Member’s class at Bowmore School.

8. During the 1977-1979 school years, student no. 17 was a 13-14 year old female student at Fairmount Park School.

9. During the 1979-1980 school year, student no. 4 was a 9-10 year old male student in the Member’s Grade 5 class at Bowmore School.

10. During the 1979-1980 school year, student no. 5 was a 10 year old female student in the Member’s Grade 5 class at Bowmore School.

11. During the 1980-1981 school year, student no. 6 was an 11-12 year old female student in the Member’s Grade 5 class at Bowmore School.

12. During the 1982-1983 school year, student no. 7 was a 10 year old female student in the Member’s Grade 5 class at Sprucecourt School, which is located at 70 Spruce Street, Toronto.

13. During the 1982-1983 school year, student no. 8 was a 10-11 year old female student in the Member’s Grade 5 class at Sprucecourt School.

14. During the 1983-1984 school year, student no. 9 was an 11 year old male student in the Member’s Grade 5 class at Sprucecourt School.

15. During the 1982-1983 school year, student no. 10 was a 10 year old female student in the Member’s Grade 5 class at Sprucecourt School.

16. During the 1984-1985 school year, student no. 11 was an 11-12 year old female Grade 7 student of the Member at Glen Ames School, which is located at 18 Williamson Road, Toronto.

17. During the 1986-1987 school year, student no. 12 was a 12-13 year old female Grade 7 student of the Member at Glen Ames School.

18. During the 1986-1987 school year, student no. 13 was a 12-13 year old female Grade 7 student of the Member at Glen Ames School.

19. During the 1986-1987 school year, student no. 14 was a 12-13 year old female Grade 7 student of the Member at Glen Ames School.

20. During the school years referred to in paragraphs 3 to 19 above, the Member:

(a) sexually assaulted student nos. 7, 8, 9, 10, 11, 12, 13 and 14;

(b) committed acts of indecent assault on student nos. 1, 2, 3, 4, 5, 6, 7, 8, 10, 15, 16 and 17;

(c) committed acts of gross indecency on student nos. 4, 5, 9 and 17;

(d) sexually assaulted student no. 9 while using a weapon;

(e) gave several of the students referred to in paragraphs 3 – 19 above, cigarettes, money and junk food in exchange for sexual favours which included oral sex, fondling and masturbation;

(f) requested some of the said students to sit on his knee during class and fondled them while they sat on his knee; and

(g) made sexual comments to some of the said students during class.

21. Further, in respect of student no. 6, the Member:

(a) touched her waist, thighs, back, buttocks and breasts;

(b) gave her and two other female students cigarettes, junk food and cash; and

(c) asked her and two other female students to play “spin the bottle” and “truth or dare”.

22. The sexual assaults of student nos. 7, 8 and 10 were committed at Sprucecourt School.

23. The sexual assaults of student nos. 11, 12, 13 and 14 were committed at Glen Ames School.

24. The acts of indecent assault in respect of student nos. 1, 2, 3, 4, 5, 6, 15, 16 and 17 were committed on school premises at 80 Bowmore Road.

25. The acts of indecent assault in respect of student nos. 7, 8 and 10 were committed at Sprucecourt School.

26. The acts of sexual assault, gross indecency and sexual assault while using a weapon in respect of student no. 9 were committed on school premises at Sprucecourt School.

27. In addition, in respect of student no. 9, the Member, after being asked by student no. 9 for money for videogames, gave student no. 9 a note that said “H.J. 5$, B.J. $20”, and gestured masturbation and fellatio when asked by student no. 9 to explain the note.

28. The acts of gross indecency in respect of student no. 5 were committed on school premises at 80 Bowmore Road. In addition, the Member:

(a) masturbated in the presence of student no. 5 after she confided that she was being sexually abused by her father;

(b) asked student no. 5 if his penis looked like her father’s penis;

(c) performed oral sex on student no. 5 on several occasions; and

(d) drew a naked picture of student no. 5 depicting her body with large breasts and pubic hair.

29. The acts of indecent assault, gross indecency and sexual intercourse in respect of student no. 17 were committed on school premises at 80 Bowmore Road and in the City of Toronto. In addition, the Member:

(a) on several occasions performed oral sex on student no. 17 while masturbating himself;

(b) on several occasions masturbated in the presence of student no. 17;

(c) on several occasions had student no. 17 masturbate him;

(d) received oral sex from student no. 17;

(e) gave money to student no. 17 in exchange for sexual favours;

(f) threatened to tell student no. 17’s parents that she was smoking or fighting at school if she did not continue to give him sexual favours; and

(g) on at least two occasions, threatened and coerced student no. 17 to have sexual intercourse with him in his car.

30. Between approximately 1 September 1979 and 30 June 1980, while student no. 17 was a student at Eastern Commerce High School, the Member:

(a) engaged in sexual intercourse with her; and

(b) committed acts of gross indecency on her.

31. The acts of indecent assault and gross indecency in respect of student no. 4 were committed on school premises at 80 Bowmore Road, and while on a school trip in the Ottawa-Carleton Region. After sexually assaulting student no. 4 on that occasion, the Member gave student no. 4 five dollars.

32. In or around December 1999, the Member was found guilty in the Ontario Court of Justice of approximately twenty-seven charges including sexual assault, indecent assault and gross indecency, relating to some of the students referred to in paragraphs 20 – 31 above. The particulars of the charges of which the Member was found guilty are within the knowledge of the Member.

33. Following the findings of guilt referred to in paragraph 32 above, the Member was, on or around 20 December 1999, sentenced to five years imprisonment.

Publication Ban

On September 15, 2003, the Panel made an order that there be no publication of any information which may disclose the identity of the students involved in this matter.

Member’s Plea

The Member pleaded no contest to the allegations in the Notice of Hearing by way of a written plea. (Exhibit 3)

Uncontested Facts

Counsel for the Member advised the panel that the Member did not contest certain facts and introduced as Exhibit 2, Particulars of the Allegations to which William James Kernaghan Will Plead No Contest, and Undertaking of Williams James Kernaghan, which provides as follows:

1. William James Kernaghan (the “Member”) was at all material times a member of the Ontario College of Teachers as shown on a copy of the Registered Member Information. (Exhibit 2, Tab A).

2. At all material times the Member was employed by the Toronto District School Board as a teacher at Bowmore Road Public School (“Bowmore School”) located at 80 Bowmore Road, Sprucecourt Junior Public School (“Sprucecourt School”) located at 70 Spruce Street, and Glen Ames Senior Public School (“Glen Ames School”) located at 18 Williamson Road, all in Toronto.

Bowmore School Assaults

3. During the 1974-1975 school year, student no. 1 was a 9-10 year old female student in the Member’s Grade 4-5 class at Bowmore School. On or about 1 December 1999, the Member was found guilty of a charge that he, sometime between and including 1 September 1974 and 30 June 1975 in the Municipality of Metropolitan Toronto did indecently assault student no. 1, contrary to S.149(1) of the Criminal Code of Canada.

4. Between approximately 1976-1978, while the Member was teaching at Bowmore School, student no. 2 was a female 12-13 year old student at Fairmount Park Senior School (“Fairmount Park School”), which adjoined Bowmore School. On or about 1 December 1999, the Member was found guilty of a charge that he, sometime between and including 7 September 1976 and 22 June 1978 in the Municipality of Metropolitan Toronto did indecently assault student no. 2, contrary to S.149(1) of the Criminal Code of Canada.

5. During the 1977-1978 school year, student no. 3 was a 10-11 year old female student in the Member’s class at Bowmore School. On or about 1 December 1999, the Member was found guilty of a charge that he, sometime between and including 1 September 1977 and 30 June 1978 in the Municipality of Metropolitan Toronto did indecently assault student no. 3, contrary to S.149 (1) of the Criminal Code of Canada.

6. During the 1979-1980 school year, student no. 4 was a 9-10 year old male student in the Member’s Grade 5 class at Bowmore School. On or about 1 December 1999, the Member was found guilty of:

(a) four charges that he sometime between and including 4 September 1979 and 27 June 1980 did indecently assault student no. 4 contrary to S.149(1) of the Criminal Code of Canada. Three of the charges related to incidents at Bowmore School and the fourth to an incident which occurred while the Member and student no. 4 were on a school trip in the Ottawa-Carleton Region.; and

(b) three charges that he, sometime between and including 4 September 1979 and 27 June 1980 did commit acts of gross indecency, to wit fellatio on student no. 4 contrary to s.149(1) of the Criminal Code of Canada. Two of the charges related to incidents at Bowmore School and the third to an incident which occurred while the Member and student no. 4 were on a school trip in the Ottawa-Carleton Region.

7. During the 1979-1980 school year, student no. 5 was a 10 year old female student in the member’s Grade 5 class at Bowmore School. On or about 1 December 1999, the Member was found guilty of:

(a) four charges that he, sometime between and including 4 September 1979, and the 27 June 1980 in the Municipality of Metropolitan Toronto did indecently assault student no. 5, contrary to S.149(1) of the Criminal Code of Canada; and

(b) two charges that he, sometime between and including the 4 September 1979 and 27 June 1980 in the Municipality of Metropolitan Toronto did commit acts of gross indecency, to wit cunnilingus on student no. 5 contrary to S.157 of the Criminal Code of Canada.

8. During the 1980-1981 school year, student no. 6 was an 11-12 year old female student in the Member’s Grade 5 class at Bowmore School. On or about 15 December 1999, the Member was found guilty of a charge that he, sometime between and including 2 September 1980 and 31 March 1981 in the Municipality of Metropolitan Toronto, did indecently assault student no. 6, contrary to s.149(1) of the Criminal Code of Canada.

Sprucecourt School Assaults

9. During the 1982-1983 school year, student no. 7 was a 10 year old female student in the Member’s Grade 5 class at Sprucecourt School. On or about 1 December 1999, the Member was found guilty of a charge that he, sometime between and including 7 September 1982 and 3 January 1983 in the Municipality of Metropolitan Toronto, did indecently assault student no. 7, contrary to s.246(1)(1) of the Criminal Code of Canada.

10. During the 1982-1983 school year, student no. 8 was a 10-11 year old female student in the Member’s Grade 5 class at Sprucecourt School. On or about 1 December 1999, the Member was found guilty of a charge that he, sometime between and including 4 January 1983 and 30 June 1983 in the Municipality of Metropolitan Toronto, did commit a sexual assault on student no. 8, contrary to s.246(1)(1) of the Criminal Code of Canada.

11. During the 1983-1984 school year, student no. 9 was an 11 year old male student in the Member’s Grade 5 class at Sprucecourt School. On or about 9 December 1999, the Member was found guilty of:

(a) two charges that he, sometime between and including 5 January 1983 and 30 June 1983 in the Municipality of Metropolitan Toronto, did commit a sexual assault on student no. 9, contrary to s.246(1)(1) of the Criminal Code of Canada; and

(b) one charge that he, sometime between and including 5 January 1983 and 30 June 1983 in the Municipality of Metropolitan Toronto, did commit an act of gross indecency-fellatio on student no. 9, contrary to s.157 of the Criminal Code of Canada.

12. During the 1982-1983 school year, student no. 10 was a 10 year old female student in the Member’s Grade 5 class at Sprucecourt School. On or about 1 December 1999, the Member was found guilty of a charge that he, sometime between and including 4 January 1983 and 30 June 1983 in the Municipality of Metropolitan Toronto, did commit a sexual assault on student no. 10, contrary to s.246(1)(1) of the Criminal Code of Canada.

Glen Ames School Assaults

13. During the 1984-1985 school year, student no. 11 was an 11-12 year old female Grade 7 student of the Member at Glen Ames School. On or about 1 December 1999, the Member was found guilty of a charge that he, sometime between and including the 1 September 1984 and 30 June 1985 in the Municipality of Metropolitan Toronto, did commit a sexual assault on student no. 11, contrary to s.246(1)(1) of the Criminal Code of Canada.

14. During the 1986-1987 school year, student no. 12 was a 12-13 year old female Grade 7 student of the Member at Glen Ames School. On or about 1 December 1999, the Member was found guilty of a charge that he, sometime between and including 1 September 1986 and 30 June 1987 in the Municipality of Metropolitan Toronto, did commit a sexual assault on student no. 12, contrary to s.246(1)(1) of the Criminal Code of Canada.

15. During the 1986-1987 school year, student no. 13 was a 12-13 year old female Grade 7 student of the Member at Glen Ames School. On or about 1 December 1999, the Member was found guilty of a charge that he, sometime between and including 1 September 1986 and the 30 June 1987 in the Municipality of Metropolitan Toronto, did commit a sexual assault on student no. 13, contrary to s.246(1)(1) of the Criminal Code of Canada.

16. During the 1986-1987 school year, student no. 14 was a 12-13 year old female Grade 7 student of the Member at Glen Ames School. On or about 1 December 1999, the Member was found guilty of a charge that he, sometime between and including 1 September 1986 and 30 June 1987 in the Municipality of Metropolitan Toronto, did commit a sexual assault on student no. 14, contrary to s.246(1)(1) of the Criminal Code of Canada.

17. On or about 20 December 1999, the Member was sentenced to five years in jail in respect of the findings of guilt referred to in paragraphs 3 to 16 above.

18. Attached was a copy of Information No. 99-70014111 showing the details of the charges referred to in paragraphs 3 to 16 above, for which findings of guilt were made by Mr. Justice H.D. Porter, as well as the sentence imposed on the Member. Pursuant to S. 486.3 of the Criminal Code of Canada, a publication ban on anything which would identify the names of the students, referred to in the preceding paragraphs, was imposed by the Court. On 30 May 2003, the said publication ban was ordered by Mr. Justice W. Horkins to remain in effect. (Exhibit 2, Appendix B). The Information has therefore been edited to remove the names of the students referred to in paragraphs 3 to 16 above as well as the charges for which the Member was found not guilty. The charges described in the Information relate to the students referred to in paragraphs 3 to 16 herein as follows:

Students

Charges in Information No. 99-70014111

Student No. 1

Charge No. 2

Student No. 2

Charge No. 3

Student No. 3

Charge No. 5

Student No. 4

Charge Nos. 12, 13, 14, 15, 16, 17 and 18

Student No. 5

Charge Nos. 19, 20, 21, 22, 23 and 24

Student No. 6

Charge No. 25

Student No. 7

Charge No. 27

Student No. 8

Charge No. 29

Student No. 9

Charge Nos. 30, 31 and 32

Student No. 10

Charge No. 36

Student No. 11

Charge No. 37

Student No. 12

Charge No. 38

Student No. 13

Charge No. 39

Student No. 14

Charge No. 40

19. Attached to Exhibit 2, Tab C was a copy of the transcript of proceedings before Mr. Justice Porter on 20 December 1999.

By signing the Particulars of the Allegations to which William James Kernaghan will Plead No Contest, and Undertaking of William James Kernaghan, (Exhibit 2), the Member, William James Kernaghan, accepts that the matters referred to in paragraphs 3 to 17 above constitute professional misconduct and pleads no contest to the allegations of professional misconduct against him being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1 (7), 1(14), 1(15), 1(16), 1(17), 1(18), and 1(19). In addition, the Member pleads no contest to the allegations that he engaged in sexual abuse of a student or students of a nature defined in sections 1 and 40(1.1) of the Ontario College of Teachers Act.

The Member further pleads no contest to the allegation that he displayed a lack of knowledge, skill or judgment and/or a disregard for the welfare of students of a nature or extent that demonstrates that he is unfit to carry out his professional responsibilities. In the circumstances, the Member consents to the revocation of his Certificate of Qualification and Registration.

William James Kernaghan hereby undertakes:

(a) that he will immediately surrender his Certificate of Qualification and Registration to the Registrar of the Ontario College of Teachers;

(b) that he will never teach again in any public or private school in the province of Ontario or elsewhere; and

(c) that he will never seek reinstatement of his Certificate of Qualification and Registration in the province of Ontario;

and asks that the said undertaking be recorded on the Register of the Ontario College of Teachers.

Decision

Having examined the Exhibits filed, the plea of no contest as set out herein, and the submissions made by counsel, and having considered the uncontested facts, the Panel finds that the facts support a finding of professional misconduct. In particular, the Panel finds that William James Kernaghan committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(14), 1(15) 1(16), 1(17), 1(18) and 1(19); and that he engaged in sexual abuse of students of a nature defined in sections 1 and 40 (1.1) of the Act; and he displayed a lack of knowledge, skill or judgment and/or a disregard for the welfare of students of a nature or extent that demonstrates that the Member is unfit to carry out his professional responsibilities.

Agreed Statement of Facts Re Publication

Counsel for the College entered into evidence an Agreed Statement of Facts Re Publication (Exhibit 4). Counsel for the College took no position on the matter of publication, but requested that the Panel provide rationale for its decision.

The Agreed Statement of Facts Re Publication provides as follows:

1. As a result of the publication in the media of criminal charges laid against William James Kernaghan (the “Member”) and as a result of the news coverage following the conviction and subsequent release of the Member, the Member and his family members have been subjected to various forms of harassment and threats by residents of their neighbourhood and others. The harassment has been ongoing but has flared up shortly after each publication of articles related to this matter.

2. The harassment has included:

(a) The posting of newspaper articles and pictures of the Member throughout his neighbourhood indicating his conviction on charges and advising of his home address;

(b) The dumping of garbage and dog feces on the driveway of the family home;

(c) Personal threats made against the Member and his family members, including threats of poisoning the Member and his family, and threats to do away with the Member;

(d) Derogatory comments made to the Member and his family members when walking near their family home.

3. All incidents have been reported to the police, however no charges have been laid by the police to date.

4. As a result of the harassment the Member and his family have taken to travelling in pairs as they fear for their safety. The family is also reluctant to have friends or relatives over to their home, and as a result of all of the above the family members feel isolated and desperate. The Member and his family are concerned that the publication of the Member’s name will lead to further news coverage of this matter with a resulting escalation of harassment and threats against them and the Member.

Penalty

Counsel for the Member adduced argument that there were compelling reasons as outlined in the Agreed Statement of Facts Re Publication as to why the Member’s name should not be published in the official publication of the College, Professionally Speaking/Pour parler profession.

Penalty Decision

The Panel accepts the undertaking of William James Kernaghan that:

(a) he will immediately surrender his Certificate of Qualification and Registration to the Registrar of the Ontario College of Teachers;

(b) he will never teach again in any public or private school in the province of Ontario or elsewhere; and

(c) he will never seek reinstatement of his Certificate of Qualification and Registration in the province of Ontario.

The Panel orders that the said undertaking be recorded on the Register of the Ontario College of Teachers.

The Panel accordingly directs the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of William James Kernaghan, which the Member is to immediately surrender to the Registrar.

The Panel carefully considered submissions by both parties as well as the Agreed Statement of Facts Re Publication. The Panel noted that both counsel agreed that the appropriate test as to publication is the risk of harm to the Member and his family, balanced with the responsibility for notification to the public of the decisions and orders of the College’s Discipline Committee as well as the general deterrent value of publication.

The Panel agrees that to order non-publication of the name of the Member, there would have to be compelling reasons submitted to the Panel, sufficient to overcome the responsibility of the College to protect the best interest of the public.

The Panel is of the view that it is important to the College’s role in the governance of the profession to provide evidence to members that the College is active in self-regulation and is vigilant to breaches of its regulations, bylaws and rules of conduct. Such evidence is provided through notification of the decisions and orders of the College’s Discipline Committee, and is, in the opinion of the Panel, a practice that has significant general deterrent value.

The Panel was persuaded by the advice of Independent Counsel that justice, if at all possible, should be convened in the public domain; otherwise the administration of justice falls into disrepute.

The Panel finds that the Member failed to demonstrate sufficient compelling evidence to not publish the name of the Member.

Pursuant to Section 30 (5) (iii) of the Ontario College of Teachers Act, the Panel orders that the findings of this hearing, as well as the name of the Member, be published

in summary in the official publication of the Ontario College of Teachers, Professionally Speaking /Pour parler profession.

DATED AT TORONTO, THIS 7TH DAY OF OCTOBER, 2003

BY ORDER OF THE DISCIPLINE COMMITTEE.

Marilyn Laframboise, Chair

Janet Cornwall

Dick Malowney