DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Amy Louise Mullins, OCT, a member of the Ontario College of Teachers.
PANEL: Mel Greif, Chair Robert Ryan, OCT
BETWEEN: ) David Leonard,
) McCarthy Tétrault LLP,
) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,
) Litigation Paraprofessional
– and – )
AMY LOUISE MULLINS ) William Markle, Stephanie Carey
(CERTIFICATE #418058) ) & Alex Munoz
) for Amy Louise Mullins
) Julie Maciura,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: March 8, 2012
PENALTY DECISION
On January 17, 2012, the Discipline Committee (the “Committee”) rendered a written decision finding Amy Louise Mullins (the “Member”) guilty of professional misconduct.
Having considered the evidence, onus and standard of proof, and the submissions made by counsel for the College and counsel for the Member, the Committee found that the facts supported a finding of professional misconduct. In particular, the Committee found that Amy Louise Mullins committed acts of professional misconduct when she engaged in a sexual relationship with Student A in the years 2001, 2002 and 2003. The Committee found that these facts supported a finding of professional misconduct pursuant to the Ontario Regulation 437/97 subsections 1(5), 1(7), 1(15), 1(18), 1(19) and that she 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 reconvened the hearing on March 8, 2012 to hear submissions on the issue of penalty.
Submissions were made by Member’s Counsel and College Counsel. Letters of reference were submitted by Counsel for the Member to support an argument for mitigation.
Submission of College Counsel
College Counsel argued that revocation was the only appropriate penalty. Publication with name should also be a significant element of the penalty. Counsel submitted that there was evidence of long term abuse. It was not just a single incident. The misconduct was a serious breach of trust and was abuse by a [XXX], educator and member of the College of Teachers. The Member sought sexual gratification and there was a great deal of evidence presented during the misconduct hearing to substantiate this. The Committee accepted the evidence of Student A and other witnesses.
College Counsel submitted that the penalty should reflect that the behaviour was at the most serious and egregious end of the spectrum of misconduct. Furthermore, there was never any acknowledgement by the Member of the behaviour and as such, no evidence of remorse. As such, there can be no mitigation in this respect when assessing the penalty. In determining the penalty the Committee should make appropriate consideration of the need for general deterrence and specific deterrence. Because there is no acceptance of the misconduct, rehabilitation as a function of the penalty is very difficult to assess.
College Counsel argued that in the end the most important factor in determining the penalty is to protect the public interest and restore the integrity of the education system by strengthening public confidence. Revocation is the only way to protect the public interest and guarantee that the Member will not once again put students at risk.
A series of past decisions of the Discipline Committee were offered by College Counsel in support for the penalty of revocation. All were penalty decisions that endorsed revocation. All of the matters had similar instances of misconduct as the penalty deliberations at hand. College Counsel selected these decisions as useful because they might guide the Committee. All six examples reflected penalties for serious breach of trust and College Counsel submitted that revocation is well within the range of appropriate penalties.
The Submission of Member’s Counsel
Member’s Counsel presented material (Exhibit 41, Character Witness Binder) under the principle that the penalty hearing is a continuation of the original hearing.
A large number of letters of reference were submitted to support an argument for mitigation on the Member’s behalf. The letters were assessed in two groups. One group was those letters sent by relatives of the Member. They are heartfelt and very positive about the character of the Member and her integrity, commitment to her profession, her reliability and selflessness. The letters refer to her desire to be of service. They also speak of her dedication to her faith. None of the letters make any reference to the matter at hand in this hearing.
The second group of letters was written by ex-students, parents of students, colleagues and friends. Again, these writers, as those in the first group, make reference to the Member’s positive attributes. These writers also refer to the Member’s excellent traits as an educator. The Committee read them all thoroughly and assigned a relative weight to them in the deliberations about an appropriate penalty. Again none of these letters make reference to misconduct.
Member’s Counsel argued that the Committee should avoid a zero tolerance perspective when determining the appropriate penalty. Revocation should never be considered as automatic. There are other options including suspension for a number of years.
Member’s Counsel suggested that in cases of sexual exploitation of persons between [XXX] and [XXX] years of age, allowances for a lighter penalty could be considered depending on the age of the student, degree of consent and if there was a criminal finding. It was also important to determine if the young person was still a student at the time of the offense. “The appropriate penalty may depend upon how you see the relationship and at what point you see it as …having existed.”
Member’s Counsel agreed that there is a need for general deterrence. The message is important. Sexual misconduct must be appropriately penalized so that the profession understands the unacceptable nature of such conduct.
However, Member’s Counsel submitted that the Member does not need to be revoked to understand the inappropriate nature of the behaviour. A suspension could have the same specific effect.
There are many mitigating factors in this matter. There were never any other complaints about the Member’s professional life. She was highly regarded. The Member is accomplished with many certificates of professional competence. The Member is qualified in religious education, librarianship and guidance. All the letters address her caring, concerned and involved nature. The letters speak to how the Member helped others deal with family crises.
Member’s Counsel submitted that character evidence is a very important part of penalty determination. It is only at the penalty phase that this type of evidence is admissible. There is no room for it in the trial phase. Member’s Counsel admitted that the Committee may assign any weight that they wish to letters of reference.
The Committee was also cautioned not to use absence of remorse and a failure to recognize misconduct as a basis for imposing a penalty. The Member’s position was consistent throughout (i.e., that a sexual relationship did not occur) and it would not be appropriate to show remorse now. The Member’s demeanour is consistent with a not guilty plea. The Committee should also consider the health of the Member as a mitigating factor.
Member’s Counsel also made comment on the “five year suspension” that the Member has already experienced. The Committee understands that she has been paid while on suspension but she has not been able to practise her craft for the past six years. Member’s Counsel submitted that this should be taken into consideration when determining the penalty.
Member’s Counsel reviewed the following legal cases: Kienapple (1974), Carruthers (1996), Mitchell (2003), Young (2001). These decisions addressed the degree of multiplicity of misconduct, the age of the student, the willingness of the student, the question if a student is a student after they graduate, inadequacy of reason for a penalty, the degree of review of the evidence presented during a hearing. All of the arguments were noted by the Committee.
Member’s Counsel stated that the discipline cases and penalty decisions brought forward by College Counsel were all agreed statements of fact. The matter before the Committee is a contested one and should therefore be judged differently as the Committee had more leeway in determining penalty.
Member’s Counsel stated that the Committee should keep in mind that the events took place many years ago. There was no harm done to Student A. The Member is not a risk to anyone. There is no evidence to indicate the conduct might be repeated. No criminal charges were laid. It was a consensual relationship, not in a legal concept, but in its practical form.
Member’s Counsel also submitted that the Committee should consider the loss of income and loss of pension benefits that will ensue regardless of the penalty decision. This would be so even if the Member could find employment as a teacher ever again.
College Counsel responded to issues raised by Member’s Counsel. The teacher-student relationship is very well defined through decisions made by the courts. The issue is about what happened at the school where the Member and Student A were found. The misconduct occurred while the Member and Student A were in a student-teacher relationship. Indeed, the Member began her relationship with Student A at the virtual beginning of her teaching career.
College Counsel submitted that the fact that the Member shows no remorse is a very important argument against mitigation. She has been found guilty; she needs to address that fact.
College Counsel argued that there has been a significant impact on the Student A, on his schooling, his career path, and his future relationships and on his family.
The passage of time since 2002 or 2006 is irrelevant; that is just how long the process has taken.
An argument that the relationship was consensual carries no weight since the Member denies the allegations altogether. If there was no sexual relationship at all (as the Member claims) then it could not be consensual.
Furthermore, when there is a power imbalance, there can be no consent relationship.
College Counsel submitted that the letters of reference are not all that helpful. They are all recent. There is no evidence of the degree of knowledge about the misconduct that is held by the writers. If the letters demonstrated a greater understanding of the behaviour that led to the matter before the College, then the letters might carry more weight. The letters also need to be assessed for their origins -friend, family or co-worker.
College Counsel reviewed the legal cases submitted by Member’s Counsel and clarified their import from the College perspective. College Counsel argued the following: It is appropriate to apply a penalty for each of the differing types of misconduct that were demonstrated by the Member. The Member was actively teaching the Student A during the time that the misconduct took place. There has been no reconciliation about the misconduct, or, for that matter, an acceptance of the misconduct by the Member.
Penalty Decision
The Committee makes the following order as to penalty:
The Registrar of the Ontario College of Teachers is directed to revoke the Member’s certificate of qualification and registration;
Pursuant to section 30(7) of the Ontario College of Teachers Act, the Committee orders that the Member may not apply for reinstatement for a period of at least ten years following the date of this order; and
Pursuant to Section (5) (3) of the Ontario College of Teachers Act, the findings and order of the Committee shall be published in summary, with the name of the Member, in the official publication of the college, Professionally Speaking/Pour parler profession.
Reasons for Decision
The Committee considered all submissions and tendered exhibits very carefully.
All of the letters of reference were read with a view for their mitigating value. The Committee gave weight to their provenance and the connection of their writers to the Member. The Committee was also interested in the degree of awareness of the Member’s behaviour that was contained in the letters. The Committee was of the opinion that insufficient awareness of the misconduct was demonstrated in the letters. The letters from persons in education and public safety were given less weight than they otherwise might have been since they did not, even though one would expect that they would, make any reference to the misconduct of which the Member had been found guilty.
The Committee accepted its responsibility to protect the public interest and restore the integrity of the public education system by making a penalty decision which is in response to the scale of the misconduct.
The Committee considered very seriously the implication of revocation versus suspension. The Committee was of the opinion that the nature of the misconduct demanded the most serious of penalties. The misconduct was so extreme in its nature and of such reprehension that revocation was the only acceptable penalty.
The Committee also considered the age of the students in involved in the matter. They ranged from [XXX] to [XXX] years. These are young persons in need of protection and, certainly, not exploitation. These students were students of the Member’s school during the time of the misconduct. There can be no age and distance mitigation.
The Member was a young teacher with very little experience. She was energetic but naïve and certainly not wise in the ways and expectations of the profession. As such there was little early indication that the Member might not be able to discharge her duties as a teacher in an acceptable manner, regardless of the formal training and additional courses that she may have completed.
The Committee is of the opinion that revocation is appropriate in this case. The Member has been found in violation of the Act in a most egregious manner. She abused a student in her care. She allowed students in her care to engage in sexual acts. She placed herself in a compromising situation in hotel rooms. She provided, paid for and tolerated the consumption of alcohol while students were under her care. She continued to be in contact with a student even after expressly forbidden to do so by his parents. She allowed students to stay in her personal residence without their parents’ knowledge and approval. She shared a hotel bed with male students in various stages of undress. There were other male students in the hotel room as well. She engaged in acts of sexual touching and sexual intercourse with a student. Any one of these misconducts would warrant a most severe penalty. The many, together, defy the adequacy of even the most severe penalty.
Revocation is the only reasonable penalty in a matter such as this. A minimum term of ten years before an application for reinstatement can be made is prudent given the responsibility to maintain the public trust. This term and condition is necessary so that the Member is under no delusion as to the severity of her misconduct.
The penalty of revocation, with the proviso that no application for reinstatement can be made before ten years, serves as a specific deterrent to the Member. The penalty as defined makes it clear that the profession takes misconduct such as this very seriously and expects that this most serious of penalties be applied in these cases. Revocation with a set term before a reinstatement application can be made also ensures that the Member will have significant time to reflect on the nature of the misconduct and not be under any illusion about the impact of her behaviour on those who she has harmed, and the damage to the honour of this profession.
General deterrence is achieved by the publication of the matter with the Member’s name. The profession in general needs to know what happens when members lose their moral compass and ignore the expectations of ethical behaviour rightly placed upon them by society and their peers. The profession wants to be assured that those members who, by their actions, have come to bring shame and opprobrium on the profession and thereby diminish our communal work are properly punished. As a profession, teachers want to know that ethical standards are maintained as a common professional touchstone. This penalty and its publication achieve this goal.
Transparency is an expectation of the public. All stakeholders expect that the actions of teachers, good or bad, are held up to public admiration or scrutiny as needed. Parents, colleagues and the public in general need reassurance that there is a process of enforcement of the expectations of
proper professional conduct and maintenance of educational ideals in Ontario.
The Member’s behaviour was more than just unfortunate, it was egregious and well beneath the standards of the profession or for that matter, anybody entrusted with the care and guidance of children and young people.
The Committee is satisfied that the public interest has been well served by the penalty imposed in this example of serious misconduct.
Dated: May 7, 2012
______________________________
Mel Greif,
Chair, Discipline Panel
______________________________
Robert Ryan, OCT,
Member, Discipline Panel