Ontario College of Teachers v. Brouillard, 2011 ONOCT 5

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Brouillard, 2011 ONOCT 5

Date: 2011-11-28

IN THE MATTER OF the Ontario College of Teachers Act, 1996, and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Eric Gerard Brouillard, a member of the Ontario College of Teachers.

PANEL: Hanno Weinberger, OCT, Chair Irene Dembek, OCT

Mel Greif

BETWEEN: ) Lisa Filgiano,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Litigation Paraprofessional

• and – )

ERIC GERARD BROUILLARD ) Eric Gerard Brouillard,

(CERTIFICATE #456554) ) represented by Kathleen Stokes,

) Weaver Simmons LLP

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: November 28, 2011

REASONS FOR DECISION, DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 28, 2011 at the Ontario College of Teachers (“the College”) at Toronto.

A Notice of Hearing, dated March 22, 2011 was served on Eric Gerard Brouillard, requesting his presence on May 3, 2011 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for November 28, 2011.

Eric Gerard Brouillard was not in attendance, nor was his counsel Kathleen Stokes.

THE ALLEGATIONS

The allegations against Eric Gerard Brouillard in the Notice of Hearing, (Exhibit 1) dated March 22, 2011 are as follows:

IT IS ALLEGED that Eric Gerard Brouillard is guilty of professional misconduct as defined in subsection 30(2) and section 40(1.1) of the Ontario College of Teachers Act, 1996 (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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3);

(d) he practised or purported to practise the profession while under the influence of any substance or while adversely affected by dysfunction, contrary to Ontario Regulation 437/97, subsection 1(8);

(e) 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, subsection 1(15);

(f) he contravened a law, the contravention of which is relevant to the Member’s suitability to hold a Certificate of Qualification and Registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(g) he contravened a law, the contravention of which has caused or may cause students under the Member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(h) 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);

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

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

PUBLICATION BAN

A non-publication order was issued under subsection 464.4 of the Criminal Code, in the proceedings in the Ontario Court of Justice. The Committee is required to maintain this publication ban imposed in the matter of Her Majesty the Queen and Eric Brouillard. There shall be no publication of any information that might tend to identify the victim involved in this matter.

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 3), which provides as follows:

STATEMENT OF UNCONTESTED FACTS

1. Eric Gerard Brouillard (the “Member”) was at all material times, a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. At all material times, the Member was employed as an elementary teacher by the Conseil scolaire catholique du Nouvel-Ontario (the “Board”).

3. At all material times, the Student was a [XXX] student whom the Member taught at the School.

4. The Member had an inappropriate relationship with the Student in that he:

(a) communicated electronically with the Student by e-mail, text messages and/or social messaging sites such as Facebook;

(b) planned social encounters with the Student using e-mail communication, text messages and/or Facebook;

(c) on or about June 3, 2009, kissed the Student on several occasions, in the back seat of his truck while at a community park.

5. On or about July 7, 2009, the Member was charged with the following in that he:

(a) committed a sexual assault on the Student, contrary to Section 271 of the Criminal Code (Canada);

(b) did for a sexual purpose touch the Student, a person under the age of sixteen years directly with a part of his body, to wit: his mouth, contrary to Section 151(a) of the Criminal Code (Canada);

(c) being in a position of trust and authority towards the Student, a young person, did for a sexual purpose, touch directly the body of the Student, with a part of his body, to wit: his mouth, contrary to Section 153(a) of the Criminal Code (Canada).

6. On or about November 9, 2009, the Member pleaded guilty and was found guilty of paragraph 5 (a) above. Paragraphs 5 (b) and 5 (c) above were withdrawn by the Crown.

7. On or about November 9, 2009, the Member received a suspended sentence with twenty-four (24) months of probation whereby he is to seek reasonable rehabilitative assessment and counselling and he is not to be within one hundred (100) metres of the Student’s residence, school and/or place of employment.

8. On or about November 5, 2009, the Member resigned his employment with the Board.

9. Attached hereto and marked as Exhibit B is a certified copy of the Ontario Court of Justice Information, dated July 7, 2009, with respect to that charge.

10. A certified copy of the Probation Order dated November 9, 2009, is attached as Exhibit C.

11. A copy of the transcript of the Proceedings on Plea of Guilty before Mr. Justice W.M. Fitzgerald dated November 9, 2009 is attached as Exhibit D.

PLEA OF NO CONTEST

12. By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in paragraphs 1 to 11 above (the “Uncontested Facts”).

13. The Member hereby acknowledges that the Uncontested Facts referred to in paragraphs 3 to 6 above, constitute conduct which is 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(7.2), 1(7.3), 1(8), 1(15), 1(16), 1(17), 1(18) and 1(19). The Member also acknowledges that he engaged in sexual abuse of a student or students of a nature defined in Sections 1 and 40(1.1) of the Act.

14. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(e) he understands that any agreement between counsel for the College and himself with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and without the advice of legal counsel.

15. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

16. In light of the uncontested facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Eric Gerard Brouillard committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(7.3), 1(8), 1(15), 1(16),

1(17), 1(18) and 1(19). Further, the Committee finds that the Member engaged in sexual abuse of a student or students of a nature defined in Sections 1 and 40(1.1) of the Act.

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 11 (the “uncontested facts”) of the Statement of Uncontested Facts and Plea of No Contest (Exhibit 3). He acknowledged that the uncontested facts referred to in paragraphs 3 to 6 above constitute conduct which is professional misconduct and pleaded no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(8), 1(15), 1(16), 1(17), 1(18) and 1(19). The Member also acknowledged that he engaged in sexual abuse of a student or students of a nature defined in Sections 1 and 40(1.1) of the Act.

The Committee accepted the Member’s plea of no contest and the facts in the Statement of Uncontested Fact and Plea of No Contest.

The Member had an inappropriate relationship with a [XXX] student whom he taught in that he communicated with the Student using electronic media such as e-mail, text messages and/or social messaging sites such as Facebook. In these communications, the Member planned social encounters with the Student. This communication culminated on June 3, 2009, where in a local park and in the backseat of his truck, the Member engaged in inappropriate conduct with the Student. The conduct consisted of the Member kissing the student several times. This behaviour was uncovered by the Student’s mother who, upon her [XXX] failure to return home, went in search of [XXX] and found [XXX] in the backseat of the Member’s truck.

As a result of this highly inappropriate conduct, the Member pleaded guilty to and was convicted of one count of sexual assault contrary to section 271 of the Criminal Code (Canada). The Member received a suspended sentence with 24 months probation. He was also prohibited from being within one hundred metres of the Student’s residence, school and/or place of employment.

The law of evidence and Rules 13.03 and 13.04 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee of the Ontario College of Teachers allow the Committee to accept as proof that an offence was committed by a person, where there is a finding of guilt and conviction in a Canadian court, provided that there is no evidence to the contrary and that no appeal has been granted. The Committee accepts as fact, as detailed in the court transcripts, Exhibit 3, that the Member was convicted and sentenced on one count of sexual assault on one of his [XXX] students.

The Committee finds that the Member’s actions and the resulting conviction for sexual assault of one of his students as outlined herein, constitutes professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(8), 1(15), 1(16), 1(17), 1(18) and 1(19). Further, the Committee finds that the Member also engaged in sexual abuse of a student or students of a nature defined in Sections 1 and 40(1.1) of the Act.

JOINT SUBMISSION ON PENALTY

Counsel for the College advised the Committee that an agreement had been reached on the appropriate penalty and introduced a Joint Submission on Penalty (Exhibit 4), which provides as follows:

The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

(a) directs the Registrar of the Ontario College of Teachers to immediately revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar; and

(b) directs that there be publication of the findings and Order of the Committee in summary form in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS ON PUBLICATION

The Committee received written submissions on publication of name from College Counsel and Counsel for the Member. College Counsel, who was present, also provided oral submissions. Counsel for the Member did not attend but her written submission was considered by the Committee.

College Counsel argued in favour of publication of the Member’s name as this is a case of such a serious nature as to warrant full and public disclosure. Counsel also submitted that publication with name supports transparency of the proceedings as well as specific and general deterrence of such conduct. Publication will act as a confirmation to the profession of the serious nature of this conduct and its severe consequences. Counsel for the College also argued that since the decision of the criminal trial was public, the name of the Member is already in public domain.

Counsel for the Member, in her written submission, requested that the Committee not publish the Member’s name as it could indirectly identify the student involved in this matter and to consider the effect that this would have on the Member’s family. Counsel requested that the Committee consider the medical and psychological well-being of the Member when making their decision with respect to publication.

PENALTY

The Committee makes the following order as to penalty:

1. The Registrar is directed to revoke the Certificate of Qualification and Registration of the Member; and

2. The Committee directs that there be publication of the findings and Order of the Committee in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY

The Committee, in reaching a decision to revoke the Member’s certificate of qualification and registration, took into consideration the admitted facts, the Member’s plea of no contest and the evidence presented by counsel.

The Member engaged in inappropriate relationship with a [XXX] student which culminated in a criminal conviction for sexual assault of the Student. The Committee finds the Member’s conduct is disgraceful and unbecoming a member of the profession. The Member abused the authority and trust vested in him in his role as a teacher, without regard for the wellbeing of the Student. The conduct of the Member was unacceptable and in conflict with the duty of a teacher to protect students. The Member, as a result of his conduct, has forfeited the privilege of holding a teaching certificate and being a member of the teaching profession. Revocation is the appropriate penalty for misconduct of this severity.

Publication of the findings and order of the Committee, with the name of the Member advises the profession of the nature of the Member’s misconduct and the consequences for such behaviour.

As a specific deterrent, publication with name reinforces the gravity of the Member’s behaviour. As a general deterrent, the public and the teaching profession will take note of the response of the Ontario College of Teachers in matters such as this. The Committee determined that arguments about the Member’s personal situation did not outweigh the need for transparency in such a serious case of misconduct. The Committee also took into account the fact that the Member’s name was already disclosed in the criminal proceedings and that personal information had already been publicly shared.

Revocation and publication with name is a specific and general deterrent in that it informs the profession that members are expected to act professionally with students at all times. Further, such serious misconduct has far reaching effects on students and their families and will result in the most serious penalty.

The Committee is satisfied that the penalty serves the public interest.

Date: November 28, 2011

______________________________ Hanno Weinberger, OCT

Chair, Discipline Panel

Irene Dembek, OCT

Member, Discipline Panel

________________________ Mel Greif

Member, Discipline Panel