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 Brent Douglas Ashley, a member of the Ontario College of Teachers.
PANEL: Hanno Weinberger, OCT, Chair Darlene Mead, OCT Pauline Smart
BETWEEN:
ONTARIO COLLEGE OF TEACHERS David Leonard on Nov. 2, 2011, Eli Mogil on June 18 & September 13, 2012, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela De Bartolo, Litigation Paraprofessional
- and –
BRENT DOUGLAS ASHLEY (CERTIFICATE #492318) Jennifer Micallef, Ursel Fellows Phillips Hopkinson, for Brent Douglas Ashley
Julie Maciura on Nov. 2, 2011, Rebecca Durcan on June 18, 2012 & September 13, 2012 Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: November 2, 2011, June 18, 2012 and September 13, 2012
DECISION, REASONS FOR DECISION, AND ORDERS
This matter commenced before a panel of the Discipline Committee (“the Committee”) on November 2, 2011 at the Ontario College of Teachers (“the College”) at Toronto.
On November 2, 2011, the Notice of Hearing dated January 10, 2011 was entered as Exhibit #1. The Member, Brent Douglas Ashley, appeared before the Committee via teleconference seeking an adjournment of the hearing. The Committee granted the request for an adjournment.
The hearing reconvened on June 18, 2012 and September 13, 2012 with the Member present and represented by counsel.
THE ALLEGATIONS
The allegations against Brent Douglas Ashley (“the Member”) in Exhibit #1 are as follows:
IT IS ALLEGED that Brent Douglas Ashley is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act (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 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 a law or laws, the contravention of which 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 a law or laws, the contravention of which may cause a student or students under the member’s professional supervision to be or 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); and
(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.
Upon reconvening the hearing on June 18, 2012, College Counsel 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 #2), which provided as follows:
STATEMENT OF UNCONTESTED FACTS
Brent Douglas Ashley (the “Member”) was at all material times, a member of the Ontario College of Teachers. Attached to Exhibit #2 and [located at Tab] “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed by the York Region District School Board (the “Board”) as a teacher at the [XXX] School (the “School”) in [XXX] , Ontario.
During the period commencing approximately December 1, 2006 and ending on or about September 16, 2007, the Member engaged in an inappropriate and unprofessional personal relationship with a female student (the “Student”) of the School, who was in Grade [XXX] during the 2006-2007 academic year.
The personal relationship between the Member and the Student commenced when the Student was approximately [XXX] years old.
The personal relationship between the Member and the Student involved:
(a) kissing;
(b) touching;
(c) oral sex; and
(d) sexual intercourse.
Pursuant to paragraph 5 above, those activities took place at the School and/or at the Member’s parent’s home and/or in the Member’s motor vehicle.
On or about July 16, 2010, the Member was found guilty in the Superior Court of Justice at Newmarket of a charge that he between December 1, 2006 and September 16, 2007, at the Town of [XXX] in the Regional Municipality of York, and elsewhere in the Province of Ontario, 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, a young person, with a part of his body, to wit his penis, contrary to Section 153(1)(a) of the Criminal Code (Canada).
On or about December 6, 2010, the Member was sentenced by Madam Justice C.A. Gilmore to twelve (12) months imprisonment and two (2) years probation.
On or about July 26, 2011, the Member appealed the conviction and sentence.
On or about July 27, 2011, the appeal was dismissed by the Court of Appeal of Ontario and the conviction and sentence upheld.
Attached to [Exhibit #2] and [located at Tab] “B” is a certified copy of the Ontario Court of Justice Information, dated October 30, 2007, with respect to that charge.
Attached to [Exhibit #2] and [located at Tab] “C” is a certified copy of the Superior Court of Justice Indictment dated November 16, 2009, with respect to that charge.
A certified copy of the Probation Order dated December 6, 2010, is attached to [Exhibit #2] and [located at Tab] “D”.
A certified copy of the Non-Communication Order dated December 6, 2010, is attached to [Exhibit #2] and [located at Tab] “E”.
Copies of the transcripts of the Reasons for Judgment made on July 16, 2010, before Madam Justice C.A. Gilmore and Reasons for Sentence of Madam Justice C.A. Gilmore on December 6, 2010, are attached to [Exhibit #2] and [located at Tabs] “F” and “G” respectively.
A copy of the Court of Appeal of Ontario decision made on July 27, 2011 before Justice Feldman, Justice Blair and Justice Watt is attached to [Exhibit #2] and [located at Tab] “H”.
PLEA OF NO CONTEST
The Member admitted, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in paragraphs 1 to 16 above (the “Uncontested Facts”).
The Member acknowledged that the Uncontested Facts referred to in paragraphs 3, 5, 6, and 7 above, constituted conduct which is professional misconduct, and pled 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). The Member also acknowledged that he engaged in sexual abuse of a student of a nature defined in Sections 1 and 40 (1.1) of the Act.
By this document, the Member stated that:
(a) he fully understood the nature of the allegations against him;
(b) he understood that by signing this document, he was consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) he understood that by pleading no contest to the allegations, he was waiving the right to require the College to prove the case against him and the right to have a hearing;
(d) he understood 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 understood 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 understood and acknowledged that he executed this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provided 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.
In light of the uncontested facts and circumstances, the Ontario College of Teachers and the Member submitted to the Discipline Committee that the Member should be found guilty of professional misconduct.
JOINT SUBMISSION ON PENALTY
The Ontario College of Teachers and the Member jointly submitted, through a Joint Submission on Penalty (Exhibit #3), that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:
(a) direct the Registrar of the Ontario College of Teachers to immediately revoke the Certificate and Qualification and Registration of the Member, such Certificate, the Member is to immediately surrender to the Registrar; and
(b) direct 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.
PUBLICATION BAN
A non-publication and non-broadcast order was issued under subsection 486.4(1) of the Criminal Code (Canada), in the proceedings in the Superior Court of Justice. The Committee is required to uphold this publication ban imposed in the matter of Her Majesty The Queen v. Brent Douglas Ashley by the Superior Court of Justice. There shall be no publication of any information that might tend to identify the victim involved in this matter.
DECISION
On June 18, 2012, the Discipline Committee rendered the following oral decision with respect to finding:
Having considered the evidence and onus and standard of proof, and the submissions made by College Counsel and Member’s Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Brent Douglas Ashley 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). Further, the Committee finds that the Member engaged in sexual abuse of a student of a nature defined in sections 1 and 40 (1.1) of the Act.
REASONS FOR DECISION
The Committee was presented with Exhibit #2, in which the Member admitted to a relationship with the student involving kissing, touching, oral sex and sexual intercourse. Further, the Member acknowledged that these activities took place between December 1, 2006 and September 16, 2007 at the school, and/or his parents’ home and/or in his motor vehicle.
In addition, 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 allows 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 documents contained within Exhibit #2, that the Member was convicted of one count of sexual exploitation pursuant to section 153(1)(a) of the Criminal Code. The conviction was entered on July 16, 2010.
Madam Justice C.A. Gilmore in her Reasons for Judgment given on July 16, 2010 found that the Member groomed the Student by way of sexual exploitation over a 10-month period between December 2006 and September 16, 2007. The Student was [XXX] when the abuse began and [XXX] years of age by the time it ended. Further, Madam Justice Gilmore found that the relationship began through e-mail, progressed to touching, kissing and oral sex and culminated in sexual intercourse on many occasions, particularly during the summer of 2007. A number of the occurrences of sexual contact took place in the [XXX] school where the victim attended and the Member taught.
On December 6, 2010, the Member was sentenced by Madam Justice C.A. Gilmore to twelve (12) months imprisonment and two (2) years probation.
The Committee finds that the Member’s actions and the resulting conviction for sexual exploitation in relation to his student as outlined herein, constitute professional misconduct, 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). Further, the Committee finds that the Member engaged in sexual abuse of a student of a nature defined in sections 1 and 40 (1.1) of the Act.
SUBMISSIONS RE: PUBLICATION
During the hearing on June 18, 2012, the issue of publication arose in relation to the College’s request to publish the member’s name when a publication ban has been ordered by the Court, pursuant to section 486.4 of the Criminal Code (Canada). College Counsel stated that, in this instance, the publication ban does not extend to the Member’s name, but to the name of the complainant only. College Counsel drew the Committee’s attention to Exhibit #2, Tab F, where the name of the Member is clearly evident on the cover page of the Reasons for Judgment from the criminal trial. The name of the Member is also evident on the Reasons for Sentence from the criminal trial (Exhibit #2, Tab G). College Counsel reminded the Committee that this hearing was open and that the Member had made no application to have the hearing closed. College Counsel submitted that the request put forth by the Member was really an attempt to protect the Member and not to protect the identity of the student. College Counsel assured the Committee that the College has a robust redaction process to protect the student and to ensure that the name of the student, which is the focus of the publication ban, is not disclosed. College Counsel submitted that protection of the public requires that the name of the Member be published. Withholding the Member’s name indicates a complete absence of transparency and accountability to members of the profession and the public at large.
Member’s Counsel stated that the Member agrees that the matter can be published in the College publication but asked that his name not be published. Member’s Counsel referred the Committee to the decision in A.B. v. C.D. which highlighted the position that publication bans issued during a criminal proceeding apply outside of the criminal sphere. Member’s Counsel submitted that the publication ban is an ongoing ban which binds the College and prohibits publication of the Member’s name in the summary or the Decision or any other reference made by the College. Member’s Counsel also argued that if the publication ban did not apply broadly, there would be no meaning to it. Member’s Counsel advised the Committee that the publication ban applied not only to the name of the student, but to any information that could lead to the identification of the student, which in this case would include publication of the Member’s name. Member’s Counsel stated that the facts on which this case was based depend on the criminal decision; therefore, publication of the Member’s name would be a violation of that publication ban. Member’s Counsel argued that when the Member appealed his sentence to the Ontario Court of Appeal (“OCA”), the OCA decided to use the Member’s initials as opposed to his full name. Member’s Counsel argued that the OCA has already determined for the Committee that the name of the teacher will identify the name of the student. Therefore, any proceeding that relies on facts from the criminal decision is bound to abide by the position taken by the OCA.
At this point in time, the Committee felt that it did not have enough information to make a fully informed decision and asked Independent Legal Counsel (“ILC”) to conduct some research into the scope of the publication ban and provide an opinion to the Committee.
ILC provided the Committee, College Counsel and Member’s Counsel with a seven- page document dated July 17, 2012. ILC stated that in her opinion, the publication ban does extend to the College but the scope of the ban does not include the name of the Member. As a result, the College can publish the name of the Member without breaching the publication ban issued by the Court pursuant to s. 486.4 of the Criminal Code (Canada).
ILC submitted that there is no evidence before the Committee that the Crown or the complainant requested the ambit of the publication ban to change, either during the trial or before the OCA, in order to prohibit the publication of the Member’s name. Absent such a request, the OCA could not alter the order. In the absence of such evidence, it is the opinion of ILC that the s. 486.4 order remains unchanged and does not, and at no point did it, include the name of the Member.
ILC provided her interpretation of A.B. v. C.D. and stated that in her opinion, it did not prohibit the Committee from publishing the Member’s name as the facts and circumstances of that case could be differentiated from the matter before this Committee. Additionally, ILC advised, there is case law to suggest that if the Member’s name was intended to be included in the original ban, then this would have resulted in a more specific order and that evidence would have had to have been provided to the presiding judge. The rationale is that precluding that information from being made public could be seen to be an incursion on the public’s right to know such information and the right of the media to publish it. Again, there is no evidence before the Committee that this was tendered before the Court.
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; and
Pursuant to subsection 30 (5) paragraph 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 PENALTY DECISION
The Committee finds the Member engaged in an inappropriate and unprofessional relationship with a student while she was under his care and supervision. The Member was found to have contravened s. 153(1)(a) of the Criminal Code in that he was in a position of trust and authority towards a young person (namely the student) and for a sexual purpose, touched directly with a part of the body (namely his penis), any part of the body of the young person.
As noted above, Madam Justice C.A. Gilmore found that the Member groomed the victim by way of sexual exploitation over a ten (10) month period. Madam Justice C.A. Gilmore found that the relationship began through e-mail, progressed to touching, kissing and oral sex and culminated in sexual intercourse on many occasions. A number of the occurrences of sexual contact took place in the [XXX] school where the student attended and the Member taught. The student was [XXX] when the offence began and [XXX] years of age by the time it ended.
The Committee finds the Member’s conduct to be 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 well-being 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.
The Committee orders publication of the finding and order with the name of the Member. The Committee recognizes that the College discipline process is separate and apart from the criminal process and that the College has a practice of including the name of the Member in its decision and summary even when such bans are put in place (with the proviso that publication would not identify the student). The Committee recognizes that the focus of s. 486.4 is to protect the complainant (in this case, the student). Further, the Member had put forth no request to have the hearing closed. There has been no evidence presented to the Committee that publication of the Member’s name would lead to identification of the student or that harm would occur as a result of publication.
The Committee considered the Member’s request to withhold publication of his name in compliance with the Publication Ban. The Committee recognizes that s. 486.4 publication bans requested by the Crown or the complainant are granted automatically without the need for evidence to support such requests. However, it is the understanding of this Committee that more specific orders prohibiting the name of the accused or other persons require evidence to be tendered to support the application. There was no evidence before the Committee that a more extensive order was requested or granted to include the Member’s name. In fact, Exhibit #2, Tab H, the Warning attached to the Court of Appeal of Ontario decision made on July 27, 2011 states “an order restricting publication in this proceeding under ss. 464.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.” This is a factor the Committee considered when it determined that the original order prohibiting publication, which did not specify the name of the Member, was not altered by the OCA.
The Committee understands that the Publication Ban does extend to the College, but is of the belief that the scope of the ban does not include the Member’s name. Therefore, the Committee determines that it can publish the name of the Member without breaching the publication ban issued by the Court pursuant to s. 486.4 of the Criminal Code (Canada).
The Committee finds there are compelling reasons to publish the Member’s name in Professionally Speaking/Pour parler profession. Publication of the findings and order of the Committee, in summary, along with the name of the Member, identifies to the profession the serious nature of the Member’s misconduct and the consequences of such behaviour. Publication, in this case, acts as a specific and general deterrent and informs the profession that such conduct will not be tolerated and will result in the harshest penalty.
Publication speaks to the transparency of the Discipline process. Publication also serves the public interest by reassuring and informing the public that the profession acts decisively when matters of this nature are brought to its attention.
In conclusion, the Committee is confident that the penalty serves the interest of the public and the profession.
Dated: November 12, 2012
Hanno Weinberger, OCT, Chair Chair, Discipline Panel
Darlene Mead, OCT Member, Discipline Panel
Pauline Smart, Member, Discipline Panel