DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Citation: Ontario College of Teachers v Murphy, 2012 ONOCT 30
Date: 2012-04-12
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
Colleen Anne Murphy, a member of the Ontario College of Teachers.
PANEL: Mel Greif, Chair Alexander (Sandy) Bass, OCT
Darlene Mead, OCT
BETWEEN: ) ) Eli Mogil,
) McCarthy Tétrault LLP, ) assisted by Jennifer Robinson,
) Law Clerk, for Ontario College
) of Teachers
ONTARIO COLLEGE OF TEACHERS )
- and - )
) Mandy Wojcik,
COLLEEN ANNE MURPHY ) Sack Goldblatt Mitchell LLP,
(CERTIFICATE # 399984) ) for Colleen Anne Murphy )
) Julie Maciura,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: October 25 & 26, 2011 and
) November 15, 2011
DECISION, REASONS FOR DECISION AND FINDINGS
The hearing began before a panel of the Discipline Committee (the “Committee”) on October 25, 2011 and continued on October 26, 2011 and November 15, 2011 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing, dated July 21, 2010, (Exhibit 1) was served on Colleen Anne Murphy (the “Member”), and she was provided with notice that the Discipline Committee of the Ontario College of Teachers would meet on August 31, 2010, to set a date for a hearing and specifying charges. The hearing was subsequently set for October 25 & 26, 2011. Colleen Anne Murphy was in attendance for each day of the hearing. The Member was represented by legal counsel.
THE ALLEGATIONS
The Allegations against Colleen Anne Murphy in the Notice of Hearing, (Exhibit 1) dated July 21, 2010 are as follows:
IT IS ALLEGED that Colleen Anne Murphy is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act (the “Act”) in that:
(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) she abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);
(c) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(d) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, including section 264 (1) (c) or the regulations made thereunder, contrary to Ontario Regulation 437/97, subsection 1(15);
(e) she 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); and
(f) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Colleen Anne Murphy (the “Member”) is a member of the Ontario College of Teachers.
The Member was employed by the Greater Essex County District School Board and at all material times was an occasional teacher at [XXX] School (the “School”), in LaSalle, Ontario.
On or about April 30, 2009, in the presence of other Grade [XXX] students, the Member:
(a) struck the upper arm of female Student #1 with her hand;
(b) struck Student #1 in the chest area with her hand;
(c) grabbed and/or squeezed the arm of female Student #2.
MEMBER’S PLEA
The Member denied the allegations set out in the Notice of Hearing.
OVERVIEW
At all material times, the Member was employed by the Greater Essex County District School Board as an occasional teacher. The specific issues for the Committee to consider were whether or not the Member struck the upper arm and chest area of Student #1 with her hand; and whether or not the Member grabbed and/or squeezed the arm of female Student #2 and if so, whether these actions by the Member amounted to professional misconduct.
THE EVIDENCE
The Committee heard and received evidence in the form of witness testimony and tendered exhibits. One of the witnesses testified using videoconference.
The Member, Colleen Anne Murphy, was assigned as a supply teacher to supervise a French class with minimal instructions for the day’s curriculum. The exchange under review took place in a classroom setting in a computer lab in which there were at least thirty students. Part of the exchange under review took place in the hallway adjacent to the computer lab where students were being organized for a return to their regular classroom.
The Committee heard evidence about three instances of alleged physical abuse. There were allegations about a blow to the upper arm of Student #1, a blow to the chest of Student #1 and a grabbing and squeezing of the upper arm of Student #2.
In his opening comments, College counsel made the theory that the Member grew increasingly angry at the noise levels in the classroom and ultimately grabbed Student #2 by the arm and struck Student #1 on the arm and, shortly thereafter, on the chest. At the time the students were in a Grade [XXX] class and, according to College counsel, are now in Grade [XXX]. Evidence subsequently affirmed that the students are now in Grade [XXX].
The incidents were reported to the principal, and he and the vice-principal agreed that there had to be an investigation. The two school administrators, principal and vice-principal, with the advice of Board administration created a plan for the investigation to take place the next day. The Children’s Aid Society (CAS) was notified as per Board protocol.
The CAS launched their own independent investigation and came to the conclusion that the allegations were credible and that the instances as described in the allegations did happen. The Member’s counsel stated that the Member denies all of the allegations and that there was not ever an instance of physical contact or abuse. In the forty minute time period during which the Member was in charge of the grade [XXX] class in the computer lab, no such instance as described in the allegations took place. The Member’s counsel also advised the Committee of the importance of assessing the credibility of all of the witnesses, the exhibits submitted and applying the standard of the balance of probabilities. She further argued that, in determining the truth in this matter, the evidence would prove to be contradictory and that there had been no impropriety.
The Witnesses
Testimony of Student #1
Student #1 testified via videoconference. In her testimony, she stated that she was in the computer lab during the time under review. During that period, she and a number of students were using the computers for games more appropriate to a music class and the accompanying music was loud. Student # 1 asserts that she was seated next to her friend, Student #2. Student # 1 states that the Member was “picking on me”. “We were told to turn down the music” and then Student #1 stated that the Member slapped her on the arm and told her to be quiet.
At the end of the class, students were lined up in the hallway in order to be escorted back to the home class properly. Student #1 testified that at that point the Member “whacked” Student #1 on the chest and told her to stop. Student #1 was so upset by the alleged action of the Member that she went to the washroom in tears. At lunch, Student #1 was persuaded by her friends to report the incident to the principal.
Student #1 was directed to the principal’s office, reported the incident and was instructed to write a note (Exhibit 3, 5) to the principal who was away from his office. That evening, she told her parents about the events that transpired at school.
The next day, at school, Student #1 was interviewed by the Children’s Aid Society investigator who had been called in to conduct an investigation.
Student #1 also testified to support the information in the note that she wrote to the vice-principal (Exhibit 4). This note was produced at the request of the vice-principal. This note recounted the examples of physical abuse and that Student #2 was a witness to the incident. When questioned about the incident described in the note (Exhibit 4), Student #1 also said that there was a second hit when she was “smacked” on the arm.
When questioned by the Member’s counsel, Student #1 confirmed that the incident occurred just before the lunch break and that she was encouraged by her friends to report it.
Testimony of Student #2
Student #2 testified about the note that she wrote in which she conveyed her experience in the classroom. She stated that the Member pulled her shoulder back and also that she saw the Member put out her arm and thereby hit Student #1. Student #2 also added that she went to the bathroom with Student #1 in order to comfort her.
According to Student #2, on their way to report the incident to the principal an aide in the school, Mrs. “V”, stopped them. The students were told to write a note to the principal. There was some confusion as to which note Student #2 was referring. The version that Student #2 wrote is labeled Exhibit 6 but she had no recollection of notes identified as exhibits 3 and 5. Student #2 also stated that her seatmate in the computer lab was not Student #1 but another student.
Student #2 confirmed that she was behind Student #1 in the hallway while they were lined up and that she witnessed the Member hit Student #1.
Testimony of Dustin O’Neil (Principal)
Dustin O’Neil was the principal of [XXX] School. He confirmed that on April 30, 2009, at the end of the day, he received a note (Exhibit 3, 5). This was a note in two parts, one part on each side of the page. Principal O’Neil spoke to the vice-principal, Lisa Major, about the allegations contained in the note(s). The Member was called to come to the principal’s office at the end of the day to discuss the contents of the note. In a meeting in the principal’s office the Member was told about the information in the note. Mr. O’Neil stated that the Member asked if she should call her union representative to be with her. The Member denied the allegation against her. The Member also added “I can’t imagine why the kids would say that.” Principal O’Neil stated that he found that the Member was defensive and that she reacted in what he felt was an unexpected manner (by asking about her union representative).
The principal called the area superintendent that same afternoon. Together they created a plan for an investigation of the allegations to be conducted the next day. The principal and vice-principal developed a script and an interview form that was to be fair and impartial. The next day the Children’s Aid Society (CAS) was called for advice, as is required by the “duty to report”.
The principal also confirmed that the vice-principal was instructed to take photos of Student#1’s arm where she had observed red marks. Thirty students were interviewed and asked to record their observations. In multiple interviews with a number of students, the principal became more convinced that some sort of physical abuse had occurred.
The principal stated that the CAS was given a separate room for their own use and was not interfered with in any manner by school staff. The CAS conducted their own investigation according to their own protocols. No notes were exchanged between the CAS investigator and school staff. This was done to preserve the integrity and independence of the investigation by the Children’s Aid Society. After the CAS completed their investigation, there was a sharing of information between the school and the CAS investigator assigned to the matter.
Under cross-examination, the principal confirmed that he had never dealt with a matter such as this previously, but that he was confident in the integrity of his approach in investigating the matter.
Testimony of Lisa Major (Vice-Principal)
Lisa Major is the vice-principal at [XXX] School. Ms. Major was a .25 vice-principal at the time. She was assigned the task of interviewing the students by the principal. She also helped to develop the process by which the interviews were to be conducted. Ms. Major interviewed Student #1 and, during that session, the student complained about her sore arm. Ms. Major noted that Student #1 had red marks on her right bicep. There were three red lines which indicated to Ms. Major that they might have been left by contact with an open hand. Ms. Major determined that taking a photo of the marks was appropriate. The vice-principal used her personal Palm Pilot phone and used the photo device to take a picture. With the student’s permission, three photos were taken. (Exhibit 7, tab 1) Ms. Major asked the student for more details about the marks on her arm and the student described how the Member had “smacked my arm” and “later she hit me across the chest”.
Upon questioning about the blow, Student #1 stated that the pain was at the intensity of “9”. As a result, Ms. Major consulted the principal and called the father of the student.
Ms. Major then proceeded to interview more students. She interviewed Student #2 who confirmed that there was a physical contact between the Member and Student #1 and that Student #1 had gone to the washroom, very upset. Student #2 joined her there to comfort her.
Ms. Major spent some time that day interviewing many other students who had been identified as having been in the area of the school where the physical contact had taken place. Ms. Major kept notes, had students record their observations and then, with all of the information in hand, she consulted with the principal. Together they assessed the credibility of the student observers of the alleged contact. They agreed that the students were credible and that indeed the alleged contact had occurred. The CAS investigation and its attendant interviews were going on at the same time as the school investigation but these two investigations, by the school and by the CAS, were not dependent in any way on each other.
Testimony of Leanne Ross (CAS Rep)
Leanne Ross was the Children’s Aid Society investigator assigned to the school.
Ms. Ross was a child protection worker with the Windsor Essex Children’s Aid Society and had been with the organization since 1999. She conducted the investigation at [XXX] School in an independent manner as prescribed by the protocols of the CAS. She also advised the police about being called in by the school. The investigation began on May 1, 2009, immediately after being called by the school. Ms. Ross’ investigation report is listed at Exhibit 9. Student #1 was the first to be interviewed, followed by Student #2. Ms. Ross verified that she did not see marks on either of the two students. Even though Ms. Ross did not see any marks on the students, she believed, because the stories were very consistent, that the students were credible.
Ms. Ross, an experienced investigator, was comfortable with the conclusion that physical abuse had occurred because in her experience, “students of this age do not generally lie”.
Ms. Ross also interviewed as many students as possible and stated that not all students witnessed the events, nor did she believe that all of the students were credible in their statements. However, in her view, because the most affected students were credible and were primary witnesses to the abuse, the abuse did happen.
Ms. Ross did discuss the difficulty that she had in contacting the Member to arrange for an interview. At first the contact telephone number provided by the board was wrong. Even after acquiring the correct number, she could not make contact with the Member. By the time that Ms. Ross had made useful contact with Member, the Member had already received advice from her lawyer not to speak to the CAS investigator unless through a lawyer. Ms. Ross, according to her testimony, considered not being able to persuade the Member to come for an interview as atypical in matters such as this. The only response received from the Member was through a lawyer’s letter in which counsel for the Member denied all allegations. This was dated June 16, 2009, sometime after Ms. Ross completed her investigation and after the police investigation was closed. Ms. Ross never spoke to the Member directly about any of the allegations.
Ms. Ross reported back to her supervisor with the details of her investigation. Together they used the notes from the CAS investigation and the evidence collected by the school and determined that, in their view, physical abuse did occur. This conclusion was shared with the school. The CAS closed their investigation because they were convinced that the school and relevant board authorities would proceed appropriately.
Testimony of the Member
Colleen Murphy was an occasional teacher for the Greater Essex County District School Board who was assigned to [XXX] School for one day. Her teaching background was music and elementary education. Ms. Murphy has a M.Ed. in educational leadership.
The assignment at the school included supervision of a class normally assigned to a teacher of French at [XXX] School. Her direction for the day’s teaching was a one page sheet of instruction and some attendance-taking materials.
In her assignment she was required to rotate through more than one teaching area, and this included a session in a computer lab with a grade [XXX] class. There she was to supervise a French class that was to use French language computer websites.
During the period the class became increasingly engaged in the computer websites and consequently the noise level began to rise. At the same time the websites were also music-based and had to be accessed with the music option on. The students did not use earphones. As a result, Ms. Murphy had to use a louder than average voice to be heard. There was a constant struggle with the students about the volume that was to be used while on the computer. The Member had to remind the students about the excessive noise level. Other than that, the class functioned in a normal way with adjustments for students needing special attention.
Throughout the class period and in the hallway, Ms. Murphy had in her possession all of her classroom materials that were given to her in her role as a supply teacher. She held these close to her while managing the class. Her description of her classroom management techniques indicated that she had a number of methods to rely upon to keep order in the class.
The Member also produced a free-hand sketch of the layout of the computer lab. This sketch revealed that the students sat side by side and also with their backs to other students in order to have the required access to the computers.
At no time, the Member asserts, did she make physical contact with any student, especially one that could be construed to be aggressive or considered to be abusive.
At the end of the class, Ms. Murphy had students line up inside the class so that they might proceed to their lunch time activities. In the hallway, the homeroom teacher met the class and escorted them back to their homeroom for a proper dismissal.
At the end of the day after finishing her teaching assignment, the Member reported to the main office for her time sheets and got ready to leave. On the time sheet there was a note to see Principal O’Neil.
At that time, Ms. Murphy was informed by the principal that he had received a note about her time in the computer lab and she was asked to come into his office. The Member, who had recently attended a seminar about teacher rights and responsibilities, asked if she needed to have a union representative accompany her for such a meeting. Mr. O’Neil stated that it would not be necessary and took the Member into his office and closed the door. It was then that the principal told the Member about the allegation of physical abuse.
Ms. Murphy was perplexed because she had had no such contact with any student. She had no idea who the student might be who reported her. Ms. Murphy did not see any of the notes in the principal’s possession. In fact, she felt that the principal did not have a real concern about the issue and she was told not to worry much about it. Ms. Murphy denied telling Mr. O’Neil that she had “no recollection” of hitting a student and instead says that she told him that she did not hit any student.
Ms. Murphy called her local union president and told her what happened. Ms. Murphy was told to report to her next assignment at a different school the next day-which she did.
The next day, during her assignment, Ms. Murphy was approached by the school principal to take a phone call from an official of the board. During the phone, call she was instructed to stop doing what she was doing and to leave the school immediately and to await further contact and information. Once at home, Ms. Murphy contacted her union representative.
Subsequently Ms. Murphy was terminated. As a result, the Member grieved the termination and, upon her successful outcome at the grievance hearing, her termination document was substituted by a letter of resignation. Ms. Murphy did not work for the board after that. Ms. Murphy’s legal representative responded to the CAS with a letter in which the Member denied all allegations.
Ms. Murphy insisted that she submitted a resignation letter with the conviction that a further investigation would prove the truth of her affirmation that no physical abuse ever occurred.
DECISION
Onus and Standard of Proof
The Committee deliberated in depth to ensure that appropriate evaluation was made of the evidence that was submitted. In their evaluation, the Committee adhered to principles established by practice and legal precedent. As stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, the civil standard – a balance of probabilities – applies to these proceedings. The standard of proof applied by the Committee was a balance of probabilities on clear, convincing and cogent evidence. The Committee looked to evidence for the incidence of overlapping stories and corroboration where a number of versions of a situation converge to create a true sense of what actually happened. The Committee was also satisfied that appropriate factors relating to credibility assessment were applied to all of the witnesses and exhibits that were examined during the hearing.
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 finds the College has not proven the allegations of professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19) and accordingly these allegations are dismissed.
Reasons for the Decision
The Committee reviewed in depth the testimony of witnesses, the exhibits tendered and the submissions of College Counsel and Member’s Counsel. The Committee paid close attention to the quality of the investigations undertaken in the development of information about the allegations.
The Credibility of Witnesses
Student #1 is a [XXX]-year-old grade [XXX] student at [XXX] School. At the time of the allegations, the student was [XXX] years old, in grade [XXX] and described as a “good student”. Her testimony was given via videoconference from Windsor. With reference to what happened with the Member on or about April 30th, 2009, [XXX], student #1, stated that her memory was not firm given the number of years that had passed. As [XXX] said, “Well I don’t really remember very much”. Additionally [XXX] also stated “I don’t really remember” and at some point [XXX] stated “I do remember some” but qualified this as “but not a lot”. To several specific questions during her testimony, [XXX] often responded with “I don’t really remember”. [XXX] often had to refer to supporting notes that she kept with her during her giving of testimony. [XXX]’s evidence proved to be tentative. During the examination-in-chief, [XXX] was unable to recollect details, displayed a heavy dependency on her notes and responded in line with suggestions made by College counsel. [XXX]’s story about the classroom incident lacked clarity and consistency. This lack of consistency occurred, for example, when describing to whom she spoke right after the alleged physical abuse.
[XXX]’s testimony is confusing regarding the actual instances of physical abuse alleged to have occurred. In her note to the principal, Mr. O’Neil, [XXX] makes reference to one blow on her chest. Later, in her interview with Ms. Major, the vice-principal, [XXX] makes reference to the blow on her arm. However, [XXX] does not make reference to the two blows in her written note during the interview with Ms. Major. Again, this would seem to be an inconsistency.
There are inconsistencies regarding the seating arrangements in the computer room at the time of the alleged squeeze to the arm/shoulder of [XXX] and blow to the arm of [XXX] [XXX] claims that she was sitting next to [XXX] in the computer lab, but [XXX] claims that she was sitting next to [XXX] and that [XXX] was somewhere else in the computer lab. It is, therefore, somewhat difficult for the Committee to fully and clearly understand the sequence and nature of the contact under question. In fact, [XXX] admits that she did not see the alleged squeeze to the arm/shoulder of [XXX] in the same classroom/lab. But since [XXX] told [XXX] that it happened and since [XXX] was a “good friend” of hers, [XXX] recorded it in her note to the principal. As a result of these inconsistencies, the Committee had a great deal of difficulty reconstructing a clear picture of the alleged behaviour of the Member in the computer lab.
While the Committee recognizes the difficulty of a young witness to accurately recollect the truth of past events in some detail, the inconsistencies between statements made in various notes aggravated the situation. In her note to Ms. Major, [XXX] writes that the Member said “I am watching you” after hitting her on the chest. However, in her testimony, [XXX] states that the Member made the statement “Yeah I am watching you” to another student, [XXX] At the same time, [XXX] added that the Member said “stop”. There appeared to be significant confusion as to the commentary made by the Member and to whom it was directed. Therefore, from the viewpoint of the credibility of the witness, [XXX], there is an absence of a singular story.
There is confusion surrounding the note that [XXX] and two other students ([XXX] and [XXX]) wrote to the principal (Exhibit 3, 5). The two sides of the note appear to be by the same hand, yet [XXX] maintains she only wrote on one side of the page, the front, and that [XXX] wrote on the back side. This assertion was never fully addressed by either counsel. The authorship of Exhibit 3/5 remains problematic for the Committee since no witness was called to comment on this question. The note written by [XXX] and perhaps [XXX] proved not to be helpful to the Committee.
[XXX]’s account of the writing of her note revealed confusion as to the events and how they unfolded. [XXX] stated that she wrote the note at the suggestion of the secretary, as the principal was not in his office. However, [XXX] testified that a “teacher”, Mrs. “V”, stopped [XXX] and [XXX] in the hallway and said that she would talk to the principal for them, but later she told the two students to write a note instead. Mr. O’Neil did not know who Mrs. “V” might be. There appeared to be little clarity in the sequencing of events.
[XXX] testified via videoconference. [XXX] did respond tentatively on several occasions, and there was some element of retraction and correction which added a tone of inconsistency. [XXX] corrected herself about the notes. At times, she was unable to remember and, when encouraged by counsel, was able to remember. D, B. appeared to be anxious, nervous and uncomfortable throughout her testimony. The Committee determined that [XXX]’s evidence was not clear, cogent and convincing.
Student#2 is [XXX] who is a [XXX]-year-old grade [XXX] student at [XXX] School at the time of the allegations. [XXX] was a classmate of [XXX] and they were in the same French class on April 30, 2009. Like [XXX], [XXX] was a student who was the subject of the alleged physical abuse by the Member.
In her testimony, [XXX] adds to the confusion surrounding the events that allegedly took place in the computer lab and the hallway. [XXX] states the she never saw the note to the principal written by [XXX] and to which [XXX]’s name was added. As a result, [XXX] is unable to expand on the content of the note but she clarifies that [XXX], whose name appears on the note, was never a witness to the event described. [XXX] does verify that [XXX] was not a witness to any of the alleged events.
[XXX]’s own recollection of the events of the day is recorded in a note written for the vice-principal the next day. In that note there is no reference to [XXX] in the classroom, but there is reference to what may have happened in the hallway. [XXX] testified that the Member “put out her hand and hurt [XXX]” [XXX] further verifies that [XXX] never sat in her vicinity in the lab, and, therefore, [XXX] admits to not being an observer of the alleged interaction between the Member and [XXX] [XXX], by her own admission, indicates that she never saw the alleged hit on the arm of [XXX] Therefore, [XXX] was unable to expand on the information available about the event in the classroom. However, [XXX] was next to [XXX] in the hallway line-up and would have been a possible witness to the blow on the chest.
[XXX] was a credible witness but, unfortunately, was not fully informed about some of the significant allegations surrounding the event that transpired in the computer lab. [XXX] was credible in her account of the hallway incident but even there she does waiver in consistency.
Dustin O’Neil has been the principal of [XXX] School since 2003, and he was principal of that school in 2009 at the time of these allegations. Principal O’Neil was very clear in his assertion that he knew all of the students in his school well. Mr. O’Neil had a definite view of the character of his students as they revealed themselves to him during the school year. Throughout his testimony, Mr. O’Neil conveyed his opinion about the individual students who were part of the French class in the computer lab.
Mr. O’Neil was not available in his office at the time of the incidents under review and in cases such as this, where he is not immediately available to students, the practice was for students to leave notes in his mailbox with a statement about their concerns. This was the situation on April 30, 2009. Mr. O’Neil testified that on receipt of the note and reviewing its contents, which included an allegation of physical abuse against a supply teacher, he put a note in the Member’s mail box requesting an interview with the Member at the end of the day. The exact method of communication between the principal and the Member was never clear, but there was a meeting at the end of the day in the principal’s office.
Before the meeting with the Member took place, the principal conveyed the information in the note to Ms. Major, the vice-principal. At the end of the day Mr. O’Neil met with the Member in his office.
The Member heard the allegation for the first time as she entered the principal’s office. Her response was to ask if she needed to have her union representative in attendance. The principal was taken aback by the speed of the request for union assistance and felt that it was “strange”. He responded that the Member was being overly defensive given the limited amount of information provided to her at that moment. The Member, in Mr. O’Neil’s view, did not react as a teacher should have given that there was an accusation of physical abuse. However, as Mr. O’Neil had never conducted an investigation such as this before, he may not have been the best judge as to what constituted appropriate behaviour and reaction in this situation. Considering the seriousness of the allegations involved, the response of the Member might seem to be reasonable and normal to others. The Member was in a hurry to get home for a previously arranged appointment and, therefore, the meeting in the principal’s office was terminated. The principal felt that the Member left abruptly but the Member asserts that the principal told her that he had interviewed the students concerned and determined that there were discrepancies in the notes and the statements of the students and that, therefore, the Member should not be overly concerned.
Subsequent to the departure of the Member, Mr. O’Neil met with the vice-principal, Ms. Major, and they compared their notes on the issue before them. They decided that further investigations were warranted. Mr. O’Neil spoke to the human resources superintendent and the area superintendent and together they worked out a plan for the investigation process. Ms. Major and Mr. O’Neil created an interview protocol and a script that would be conveyed to parents via telephone. The interviews were scheduled to take place the next day, May 1, 2009.
According to Principal O’Neil, in most investigations they would have had the students write a written account before being interviewed. These interviews would take place first thing in the morning in order to minimize the likelihood that students would have the opportunity to discuss the events prior to these interviews. However, the pragmatics of this interview process were difficult because of the number of interviews involved and the fact that the vice-principal had only 0.25 administrative time for interviews. The fact that Mr. O’Neil was not concerned enough to call parents immediately, nor did he book a supply teacher to take over Ms. Major’s classes for the next day so that the interviews could be properly conducted, caused the Committee to lean towards the Member’s assertion that he did not appear to be “overly concerned” at that point. Although Principal O’Neil confirms that they wanted to make certain that the interview process was “fair and unbiased”, the process that unfolded may not have achieved that goal.
During further examination-in-chief Principal O’Neil responded to questions about his findings during the early stages of his investigation. On being advised by the vice-principal about red marks on the arm of [XXX], Mr. O’Neil agreed that photos should be taken. A number of students, [XXX], [XXX], and [XXX], said that they saw the hit(s), but he also admitted during the same interview period, more students from the same cohort such as [XXX] stated that while in the room they saw no instance of physical abuse. In spite of this conflicting commentary by students being interviewed individually, Principal O’Neil felt that he had sufficient indication that the investigation should proceed to the next level.
Under cross-examination, Principal O’Neil was further questioned about the evidence-gathering. Mr. O’Neil admitted that this was his first investigation in a matter such as this and on this scale.
The principal was unclear about several operating aspects of the investigation. For example, he did not recall any steps taken to prevent students from speaking to each other until after the investigation was complete. Nor did he clearly remember the time at which certain aspects of the investigation took place. Ultimately, the principal admitted to the following: two students, [XXX] and [XXX], supplied notes that indicated instances of physical abuse. During the investigation, when more students were interviewed, some students made reference to hit(s). One, [XXX], made a written statement and there is reference to a verbal statement in that regard by the principal. [XXX] made two written statements that do not support each other. One says nothing about [XXX] being hit and [XXX] is the only student who makes reference to [XXX] being pushed forward. The Committee has difficulty accepting the testimony, written and verbal, of [XXX] as cogent, clear and consistent. The other student, [XXX], made a verbal declaration of a hit but there was no written evidence of the same view. So the Committee was troubled by the absence of consistent and cogent evidence about the specific physical abuse that was alleged to have taken place.
Equally disturbing was the issue of whether the principal asked the students if they actually saw the incidents or had just heard about them. He did not ask about where the students were in the lab or hallway, relative to the position of [XXX] and [XXX], information that would have added to the credibility of the statements made by students.
Furthermore, it was troublesome to the Committee that Principal O’Neil did not personally interview [XXX], [XXX] and [XXX], two of whom were witnesses and one who was listed as the author of one of the notes (exhibit 3/5). These students might have possessed additional information relative to the actual nature of the events in the lab and hallway.
Principal O’Neil did not interview students who, by their own admission, later in other reports, state that they did not see any hit(s). By not interviewing such students and asking them where they were in relation to [XXX], Principal O’Neil could only form a partial picture of the events that transpired in the classroom/lab or hallway.
In the principal’s summary report, he refers to eight students who had seen the Member hit [XXX] The principal maintained in his report that the students were consistent in their evidence. However, Principal O’Neil admits to not interviewing all of the students personally. In cross-examination he recants the statement made in his report of May 4th, 2009 and says that it should have said that eight students had seen some form of physical abuse. But the eight together do not actually make reference to any one single hit. There appears to be significant confusion about the statement, thereby leading to a conclusion by the Committee that the statements together cannot be considered to be clear, cogent and convincing.
Lisa Major is the vice-principal at [XXX] School. In 2009, at the time of the allegations, her responsibility was based on a .25 administration and .75 teaching load. Nevertheless, she was still expected to be able to function as a competent and effective administrator.
Ms. Major was working under difficult time constraints and none of the evidence that has been submitted about the interviewing process has consistent time statements. Because she was required to continue in her .75 teaching assignment, Ms. Major was forced to speak to students during the spare bits of time that she had between classes. This may have compromised the integrity of the process. At the beginning of her testimony, Ms. Major stated that she started her interview early in the day, but the Committee had difficulty understanding what that actually meant. At first the Committee understood that she began her interviews prior to the start of classes and continued during her two breaks at 10:30 a.m. and 1:05 p.m. However, later testimony seemed to suggest that she did not start interviewing students until 10:30, during a short break in her teaching duties, and she continued at 1:05 p.m. when she met with [XXX] and [XXX]. Her testimony confirms that she resumed her interviewing at 1:50 p.m. according to the interview plan established the day before. The apparent inconsistency of process, the lack of time and spacing integrity and the failure to ensure the students did not speak to each other led the Committee to consider that the investigation process undertaken by Ms. Major was flawed. This was most unfortunate from the viewpoint of the Committee.
Ms. Major indicated that she had no serious concern about students exchanging points of view about the matter as they understood it. She was of the opinion that students would have shared information even before the interview process began on May 1, 2009. Ms. Major felt that keeping students from sharing was an impossible task at any rate. She expressed the opinion that she was not really overly concerned about it. However, the Committee had concerns about the integrity of the evidence gathered and felt that it might be seriously tainted.
One inconsistency in the evidence that needed to be addressed was the nature of the hit(s). Were the alleged hit(s) “smacks” or “squeezes”? [XXX] called them both squeezes and smacks indiscriminately. This may have been because the witness is young and does not consider consistency in language and description as being significant. A trained investigator would have clarified the choice of language. There is also inconsistency about the number of hits. At times there was one and at other times, depending on the witness, there were two. There was no effort on the part of Ms. Major to clarify this matter in the written submissions and the oral interviews. This was troubling to the Committee.
Ms. Major guides the Committee to another discrepancy regarding what the parents of [XXX] knew about the alleged incidents. [XXX] said that she had talked to her parents on April 30 and that they were shocked by the news. They were going to call the school on May 1. However, when Ms. Major called the father of [XXX] on May 1, his response led her to believe that he knew nothing about the incident and, in fact, was very surprised. This concern was magnified in a review of a letter from the father which indicated that [XXX] had given a great deal of information to her parents. [XXX] stated that she fully shared the information with her parents and had shown them the marks on her arm, and that she had spoken about the physical pain that the hits had generated. Therefore, the father’s reaction to the telephone call placed by Ms. Major is very confusing.
Under questioning, Ms. Major added a further note of inconsistency in the process of investigation. Ms. Major was asked about student notes and if it was possible that they had been “supplemented”. At this point Ms. Major became confused because she was not sure what Mr. O’Neil had told the students in this regard.
It was possible that not all of the notes were written before the interviews took place. It does appear that some of the interviews were written at the instigation of the principal after the interviews took place. Ms. Major was not sure what information Mr. O’Neil gave the students.
Ms. Major’s conduct of the interviews was not fully developed. One of the students, [XXX], was considered by other students as a person who was not a full witness to the events in question and yet she had, nevertheless, written a note about what transpired in the classroom and the hallway. Even after being told by other students that they did not agree with the evidence provided by [XXX], Ms. Major did not request that [XXX] come for an interview. Ms. Major ignored a very important fact about the quality of a “witness” to the incident in this matter. She did not press forward to determine if or why [XXX] had made a false statement and if the students had been discussing the incident before the investigation took place. It may be construed that the students did do some exchanging of information while the investigation was under way.
Ms. Major was selective about which information she accepted from students. In the interview with [XXX], for example, she minimized his accounts, determining that [XXX] was not reliable because of her previous experience with him. In point of fact, Ms. Major accepted part of [XXX]’s testimony as accurate – what he said he saw regarding the hit on [XXX] and the squeeze on [XXX] – but discounted his claims that the Member dug her nails into his shoulder. In her interviews with students, Ms. Major seems to have made credibility assessments of each student and perhaps favoured those whom she believed to be more credible based on her previous experience. This was a serious problem for the Committee.
At no time in her investigations did Ms. Major establish a seating plan or map of the spaces which establishes where students were relative to each other and to the complainants in the alleged incidents. Even her draft of the line-up in the hallway does not match student recollections of where they stood in relation to their classmates. There was no confirmation of this type of evidence which would have served to strengthen student testimony.
Although well intentioned in undertaking her investigation, Ms. Major was inexperienced in conducting this kind of investigation. In the end, her workload, lack of experience and the time constraints undermined the quality of the evidence collected. Therefore, in spite of the well intentioned effort, ultimately the investigation conducted by Ms. Major was flawed.
Leanne Ross is a child protection worker for the Windsor Essex Children’s Aid Society. She has been employed in this capacity for eleven years and counts herself as an experienced person in this field. She has had ongoing training and has conducted a number of investigations of child abuse with some experience in a school setting. She admits to investigating about fifteen cases a month, but has only had four to five teacher-student investigations. She refers to what she does as forensic interviewing.
Ms. Ross was summoned to [XXX] School on May 1, 2009 regarding the allegations against the Member, and she started her interviews that same day. This investigation was conducted independently of the school investigation efforts. Ms. Ross conducted her investigation as a parallel process. Ms. Ross notified the local police and they conducted their own investigation. At the end of her investigation, Ms. Ross consulted with her superior and produced a comprehensive report (Exhibit 9). This report contained interview notes, police reports, and any correspondence to do with the investigation of the alleged physical abuse. There was also a full inclusion of the interview notes. All of this material was reviewed during the hearing at the College.
All of the testimony of Leanne Ross was conveyed to her by students. Much of the evidence is of the sort and nature that might be referred to as hearsay evidence and, therefore, the Committee gave it less weight than it gave to the direct evidence it heard.
Ms. Ross interviewed both [XXX] and [XXX], as was required by CAS protocols. She asked to see if there were any marks on the two students. In both cases, there were no visible marks on [XXX] and [XXX]. The CAS has an “Eligibility Spectrum” that is applied to instances of visible marks. In this case, there was no indication of any marking. Ms. Ross’ verification of the lack of marks visible on [XXX]’s arm raises questions regarding this evidence. In her letter to the principal on April 30, [XXX] makes no complaint and no mention of the Member hitting her on the arm, and yet Ms. Major notes that on the morning of May 1 she sees clear marks and takes photos of these marks. While the photos are inconclusive, Ms. Major notes that “If you were to take your hand and slap yourself, it looked like there were three lines from in between where your fingers would be, so just three long lines in between there. It looked like finger imprints on the arm. You know, I was surprised to see them because this was the next day.” However, just hours later, when Ms. Ross interviews [XXX], she sees no signs of red marks on this student.
Both [XXX] and [XXX] describe their classroom experiences and both affirm that they were hit by the Member. However, after that, the combined stories begin to differ. [XXX] states to Ms. Ross that she was sitting with [XXX] in the computer lab, while at the hearing [XXX] states that she was sitting with [XXX] Although this would appear to be a minor change in the testimony, in fact it signals more areas of concern. Similarly, [XXX] says that she was sitting right next to [XXX] in the computer lab. However, she says nothing about the Member squeezing [XXX]’s shoulder and simply complains about the Member yelling at [XXX] to put her pencil down.
In her testimony, Ms. Ross is vague about whom she chose to interview and why. She did not interview all of the students. She stated that she chose students to be interviewed if they were cited by [XXX] and [XXX], but in some cases she does interview students who were not named by either of these students. There appears to some inconsistency in the approach to the interviewing.
Ms. Ross was also influenced by the school investigation in one instance. Ms. Ross did not interview [XXX], who apparently said that she saw the hits, because the vice-principal told Ms. Ross that she believed [XXX] was not a credible student. There appears to be a gap in the quality of the process since it revealed a dependency on others to do the investigation. This is also part of the concern about hearsay evidence.
Ms. Ross relied heavily on the verbally expressed opinions of the vice-principal and principal. She did not get a copy of the school investigation report and did not feel the need to have this evidence in her possession. Ms. Ross never saw any of the evidence at first-hand. This flawed process does affect the credibility of Ms. Ross.
Ms. Ross took the position that students who did not see anything were not in the line of sight; she did not entertain the possibility that students may not have seen anything because the incidents did not occur as alleged. Ms. Ross did not look for negative views. When presented with information about the hallway line-up, Ms. Ross never asked for any corroborating evidence nor tested its veracity with other students.
After interviews of as many students as she thought appropriate, consultation with her supervisor and application of the principles of the balance of probabilities, Ms. Ross came to the conclusion that the alleged physical abuse did in fact happen. She made this observation in the substance of her report.
In her testimony about the credibility of students and their evidence, Ms. Ross had a very simple position. In a number of cases, she stated that she relied on school administration for whom could be trusted and whom could not. For example, [XXX] was not interviewed because she believed “absolutely” that confirmation about the integrity of [XXX] by the vice-principal was sufficient to her investigation. When the principal and the vice-principal believed the students, then that was all that was necessary. As long as the students’ stories were the same, it was judged to be clear, cogent and consistent. Ms. Ross’ position was that “kids this age, they’re just more liable to tell the truth…”. This appeared to be Ms. Ross’ mantra for her investigation. Ms. Ross did not seem to see the difficulty in her position created by the fact that [XXX] and [XXX] were already deemed by the vice-principal and principal to not be telling the truth.
Ms. Ross was content to hear evidence about the Member’s negative facial expressions from a number of students. In fact, there were only three students who expressed this sort of view. Ms. Ross then used this in the formation of her sense of the Member. This approach to the formation of opinion does not speak to the high quality of the investigation. It does highlight the need for consistency and sophistication in the processing of evidence.
Ms. Ross’s testimony, as well as her investigation, was given and completed without speaking to the Member and hearing her account of the incident. Ms. Ross only ever had evidence from a lawyer who wrote on behalf of the Member. Ms. Ross was unsuccessful in making contact directly with the Member. There was a serious gap in the information available to Ms. Ross. As such, Ms. Ross’ investigation has some significant weakness and could be seen as not cogent, consistent and credible, and certainly lacking in immediacy. There was far too much reliance on “hearsay” or second hand and recounted evidence.
Colleen Murphy, the Member, took the stand in her own defense. The testimony was to the point. The incidents described in the allegations never happened. Ms. Murphy proved to be a clear, consistent and cogent witness in that her testimony was strong, spoken with conviction and had a consistency of narrative, both in examination-in-chief and in cross-examination. Her testimony was unaided by notes. There was no refreshing of her memory about the events under review in this matter.
Ms. Murphy was assigned to a class in a computer lab. There, she had no lesson plan except to allow the students access to French language web sites. Some of the sites had music as part of the activities. The information about the nature of the programmes was never clearly conveyed by the Member. The students did turn their attention to the activities. Ms. Murphy did not have benefit of a seating plan. There were no headphones, and eventually a problem arose because of the noise/music emanating from the computers. Students were also using interactive programmes. Ms. Murphy had to use her “computer lab” voice in order to rise vocally above the student level of noise. There was a specific request by Ms. Murphy to lower the volumes on the computers.
The only additional record for the Committee of the description of the computer room and the proper location of the computers was provided by Ms. Murphy at the request of her counsel. The descriptions of the lab mirrored that provided by the vice-principal. This was helpful for the panel. Ms. Murphy had a clear recollection of the organization of the room. Even when questioned about her recollection, she remained firm in her memory of the physical attributes of the room.
On the issue of the level of her voice, where comment was made that the Member was speaking very loudly, her response was that she was not loud but merely appropriate to the circumstances. Her voice level was required when presented by the conditions in the computer lab when computers and students are engaged in interactive tasks. She did not “yell” at the students. She used a voice level suitable to the situation.
Ms. Murphy further established her credibility as an occasional teacher of some experience by referring to the types of routines at her disposal when in charge of a class in a challenging situation. She handled the class in a determined and organized and confident manner. In her approach to lining up to leave the room, welcoming and managing late students and general classroom discipline and etiquette, she demonstrated experience. Students were required to stand properly, replacing their chairs, turning off their computers and generally maintaining proper decorum.
During the class, the Member maintained class attendance notes, arranged for a student to manage those computers that would not turn on and generally remained on top of the issues that are presented by such a class and in such a situation.
The Member was asked about the allegations of hitting [XXX] and squeezing [XXX] Her response was that she did not hit or touch any student during the class. In response to the use of the phrase “I am watching you”, Ms. Murphy states that this was directed to the whole class to ensure that they knew that she had expectations about what programmes the students would access. Ms. Murphy was monitoring their computer screens to ensure compliance with her directive. During the class, Ms. Murphy actively patrolled behind the students to ensure that her instructions were being followed.
Ms. Murphy maintained in her possession a folder and pencil, and held them close to her throughout the class. In response to the accusations of squeezing a student’s shoulder and hitting another student’s arm, the Member responded that this would not have been possible given the requirement to hang onto her classroom accessories and personal things. The Member was also keeping her materials close to her because she was making notes for the classroom teacher as to the progress of the class in the computer lab. This all seemed to be a credible activity for an occasional teacher in fulfilling her duties. In fact, this would be expected of an occasional teacher.
At the end of the class, Ms. Murphy stated that she asked each student to leave their computers where they had been seated throughout the period and to turn them off, to place their chairs back and then to proceed to the doorway to line up and wait. The students were organized traditionally, boys on one side and girls on the other. They were to await instructions about entering the hallway. At no time did the Member hit any student. As they progressed down the hallway, the students were met by their next teacher. This account seems to be very credible and demonstrates the work of an experienced teacher.
At the end of the day, Ms. Murphy, as her testimony indicates, had her first indication that there was some issue with how she had conducted her classes that day. The principal left a note attached to her time sheet informing her that she should speak to him before she left the school. Her first thought was that she had never been requested to see a principal in his office before in any occasional assignment during the seven years that she had worked as an occasional teacher. As she knew that this was an unusual request, her first comment to the principal was to inquire if she needed a union representative. This comment was not prompted by apprehension of having done anything wrong, but by the unique nature of the principal’s request. Principal O’Neil felt that Ms. Murphy’s reaction was peculiar. In the light of the past experience of Ms. Murphy, her asking if she needed a union rep seemed to be quite reasonable. Teachers are cautioned in this regard by their federations. Therefore, the reaction of Ms. Murphy to the request to meet with the principal and her testimony about it seemed reasonable to the Committee.
The Committee also heard that Ms. Murphy had had recent training about how to proceed when an allegation has been made and what a teacher’s rights and obligations may be. Ms. Murphy’s immediate response to this situation was not one that suggested to the Committee any indication of her culpability.
The Member was informed by the principal of the allegations against her. In relation to her comment about union representation, Principal O’Neil stated that he had spoken to the students and did not seem to be overly concerned as he believed that the stories of the students did not converge. According to the information that the principal conveyed to the Member, some of the elements of the allegations as contained in the notes - for example her use of a loud voice, her contact with students and the issue of the volume of the computers - were unclear in their provenance. From the Committee’s perspective, some of these details were not part of the original note from the complainants and, therefore, the panel is troubled by the inconsistencies. Again, at the end of the interview, the Member was told not to worry about the allegations since the principal felt that there were some problematic issues in their quality.
At the end of the meeting, the Member had to excuse herself and respond to a previously arranged appointment at her home for which she was already late.
Ms. Murphy called her union president from her car in the parking lot of the school, in spite of the fact that the principal’s advice was not to be overly concerned. During the course of the afternoon and evening, Ms. Murphy contacted her union president again and was told to go to her next day’s teaching assignment as usual. The Member went to her assignment the next day. During that day, she was contacted by Board administration and told to go home and await further instructions. She was also instructed by her union representative not to talk to anyone and to let her legal representative go to work on her behalf. From that point on, Ms. Murphy defended herself through letters from her lawyer.
Ultimately, Ms. Murphy was terminated and, by a later grievance process, was allowed to resign. A resignation letter was placed in her personnel file. The truth of the allegations had never been tested until this discipline hearing.
Ms. Murphy’s credibility as a witness in her own defense was strengthened by her responses under cross-examination. To each suggestion that she had been frustrated, edgy, yelled at the students and was losing control of the class, she responded with a strong affirmation of her ability and conviction that she never did any of the alleged behaviours suggested to her during the cross-examination.
The Committee found the Member to be a clear, cogent, consistent and confident witness in her testimony. Her evidence never wavered and was underpinned by a strong and credible narrative.
The Exhibits
The Committee spent some time in assessing the quality and nature of all of the exhibits submitted during the hearing.
Exhibit(s) 3/5 was/were a note placed in the principal’s mailbox from students [XXX], [XXX] and [XXX] The actual authorship of the note(s) was never resolved to the satisfaction of the Committee. In fact, during the hearing and in examination of witnesses, there was increasing confusion about the note(s). In testimony, [XXX] stated that she wrote Exhibit (3), that is the front of the note, and that [XXX] wrote the other side of the note-Exhibit (5).The Committee was told that the notes were all part of the original note given to the principal. Under examination, [XXX] stated that she had no hand in the writing of the document, yet her name appears on exhibit (5) as an author of the note. Additionally, [XXX] stated that [XXX] did not see the incident but still wrote the information on Exhibit (5), the other side of the note. Both [XXX] and [XXX] stated that [XXX] was not present during the alleged hits. During testimony, none of the witnesses could agree on the true nature of the note(s). The Committee, therefore, did not give much weight to the note(s) identified as Exhibit(s) 3/5.
Exhibits 4 and 8 are assessed in tandem. Exhibit 4, a note written by [XXX], and Exhibit 8, a note written by Ms. Major, produce an element of doubt in that they have different views about the number of hits that were experienced by [XXX]. In her note, [XXX] stated that she was “hit in an inappropriate place”, while Ms. Major, in her note, stated that [XXX] said in her interview that the Member “hit me 2 times”. The notes are not dated. Together the two notes, Exhibits 4 and 8, produce a significant confusion as to what actually transpired on the day of the incident.
Exhibit 6 is a note written by [XXX] Its tone and information confused the Committee in that it has all the appearance of a note that might be written to a close friend. A review of the transcripts required the Committee to determine that the probative value of Exhibit 6, a note written by [XXX], to be of less weight. When questioned about the note, [XXX] at first did not recognize the note and, only after further questioning, admitted that she recognized it as one written in the presence of Ms. Major. Since [XXX] was a witness for the College, the probing of her testimony by College counsel alerted the Committee to the problematic nature of the evidence in Exhibit 6. There is a supplementary written commentary in the lower right hand side of the note which appears to be written by Ms. Major. As such, the Committee did not know what weight to attach to the information contained since the language is that of an adult and not a child and, in effect, this weakened the impact of the note written by [XXX], above, on the same sheet of paper.
Exhibit 10 is a hand drawn floor plan produced by the Member at the request of her counsel. The floor plan is that of the computer lab where two alleged incidents of physical abuse took place. All witnesses agreed in their testimony that the floor plan showing the correct placement of computers was accurate. There was some debate about the belief of the principal about the way the computers in the centre of the room were placed, whether back to back or in rows facing in a specific direction. The Committee accepted the view of the Member and the vice-principal who were likely to have a strong memory of the layout of the room. The classroom teacher is more likely to remember her teaching space than a principal who is responsible for many more rooms. Testimony was given that the Computer Lab had been remodeled since the date of the alleged incident and that perhaps the principal’s view of the floor plan may have been affected.
Exhibit 11 is a post-it note attached to the Member’s time sheet. It was useful in helping the Committee in their assessment of witness credibility in that it clarifies how the Member received her instruction to meet with the principal. The principal, in his testimony, stated that he had called for the Member. It was only clear that she was summoned. The means by which the Member was summoned remains unclear. The Exhibit reinforces the Member’s clear memory of the date and understanding of the event in that it shows a note that was affixed to her time sheet for the day. This note strengthened the Committee’s view that the Member was a reliable witness in describing the events of the day in question.
Exhibit 7 is a Book of Evidence submitted by College counsel to support his theory of the matter. It is a collection of the investigation notes of the principal and vice-principal. The Book of Evidence also contains student notes, photos, interview sheets and parental letter. In all, there are 9 tabs.
Tab 1 shows photographs taken by the vice-principal on a Palm Pilot that was in her possession at the time. These photos were taken approximately 24 hours after the incidents of alleged abuse and with the approval of the principal. The vice-principal took the photos because, according to her testimony, she saw “red marks” on [XXX]’s right upper arm. The photos show no marks that are discernible. The photos are not tagged with a time or date. The photos are inconclusive in establishing the nature and extent of any injury.
Tabs 3, 4, and 5 are reviewed under other headings and in reference to other testimony by witnesses.
Tab 4 shows two pages of a “sticky” pad note written by the principal and dated April 30, 2009. Most of the note(s) has/ have a tone which implies that the Member did not do certain elements of the allegations. In two instances she did do some part of the allegation, for example the turning on and off of the lights and the statement “I am watching you”. In examination, the principal clarified the meaning of his notes and declared that item #3 stated that the Member did not remember saying “I am watching you”. The Member, in her testimony, agreed that she did not say those words with that intention. The Member insists that she was addressing the class as a whole and not any particular individual. So here there is a discrepancy between the principal’s memory and the note(s) in his own handwriting which by his own admission, in examination, have some issues of legibility. The principal also testified that the Member told him she did not turn off the lights and request a lower volume, but the note(s) state otherwise. The note(s) lend credibility to the Member’s account of the interview with the principal and add to the credibility of the Member in general.
Tab 5 represents notes taken by the principal and vice-principal. They review the interview of [XXX] where she contends that she was “hit”. A note in Tab 5 accounts for the reaction of [XXX]’s parents on hearing of the incident. There is also affirmation that the vice-principal telephoned the father of [XXX] at 10:50 a.m. There is confirmation that the principal called the CAS at 11:05 a.m. on May 1st, 2009 and that [XXX] and [XXX] affirm that [XXX] “never saw anything”. Useful in Tab 5 was a list of students who were lined up to leave the computer lab. This line-up was provided verbally by [XXX] and, therefore, is hearsay in that the writer of the note did not observe the lineup. Tab 5 serves as an account of the school investigation and the steps taken by the administration.
Tab 6 is the account of [XXX] as she responded in an interview with Ms. Major. This interview was conducted in accordance with a plan established the day before, on April 30th, 2009. All 26 students were asked the same questions. Twenty-one of the 26, or 81 per cent said that they saw no hits take place. If one discounts that two of the five who say they saw hits were the complainants themselves, this figure rises to 88 per cent. One of the three remaining witnesses who stated that he did see a hit was described by school authorities as an “unreliable” source. The Committee reluctantly had to assume that there was an overwhelming shortage of witnesses who could attest to an incident of physical abuse having taken place. In fact, the students who say that there was a hit could be considered to be assuming that a hit took place in all of the circumstances, including the likelihood that the children spoke to each other about the events. No witness apart from the complainants, [XXX] and [XXX], is absolutely sure that a hit did take place.
Tab 8 is a letter from the father of [XXX] Although interesting in its detail and its reflection of a parent’s rightful concern, in sum the letter conveyed hearsay in that it reports what she told her parents. The parent was not a witness to the incident and, therefore, the letter has to be weighed as such.
Tab 9 is a summary of the principal’s experience during the school investigation. The principal does deny the accuracy of his notes in Tab 4.
Exhibit 9 is a record of the CAS investigation. It is a large document and provides a great deal of information about the alleged incident. Much of the information obtained by the CAS is based on hearsay without much filtering. There are comments about the Member and her prior behaviour as a teacher but no specific information was brought forward to the Committee by either counsel. References were made about the physical demeanour of the Member in a negative way, all based on uninformed response. The CAS report is basically an unfiltered report which gives undue weight to versions of events that overwhelmingly were not witnessed by the students. The CAS report is primarily hearsay except for the interviews with the two students affected during the alleged incident.
The CAS report is useful as a document that outlines the scope and breadth of the investigation of the School Board and the Police. The Police closed their investigation once the wishes of the parents were made known. The CAS report did contain a very useful letter from the Member’s lawyer in which the views of the Member were made known and where specific concerns of the Member and her lawyer were articulated.
The Submission of College Counsel
College counsel was clear in his opening statement about the issue of credibility and its importance in this matter.
The position of College counsel was that the evidence was consistent and that the credibility of the case should not be affected by the fact that some students did not see the alleged misconduct. The two students who were allegedly affected were excellent students and trustworthy witnesses. This is confirmed by the fact that they offered their opinion immediately that one of the witnesses ([XXX]) was not truthful in the information she gave about the events.
College counsel characterized the principal as trustworthy and efficient, but not a professional investigator. Because this type of incident is rare, there can be little prior experience. The fact that this was the principal’s first investigation of this type was of no importance. The view was also advocated by the CAS investigator who commented on the excellent work done by the principal and the vice-principal.
College counsel focused on the Member and her credibility. During the Member’s interview with the principal, the principal’s note indicates that the Member stated “I have no recollection of striking or making and physical contact with any of the students.” The Committee, in reconciling this comment, found that in her testimony, the Member insists that she said “I did not do this” and not “I don’t recall”. The fact that the Member asked if she needed a union representative, according to College Counsel, might indicate culpability, but for the Committee this was an appropriate union-recommended response.
College counsel identified the fact that there were five student witnesses to the alleged physical abuse, [XXX], [XXX], [XXX], [XXX] and [XXX]. However, [XXX] was discounted by the College counsel and an alternative student, [XXX], was not a witness to the abuse. So, by College counsel’s own admission, there were only four possible witnesses to the alleged abuse, two of whom were the alleged victims. In fact, the overwhelming majority of students present on the day of the allegations saw no evidence of physical contact.
College counsel argued that it was inconceivable that [XXX] and [XXX] would lie to the principal and the vice-principal. It was unlikely that students could deceive so many experienced people. All persons involved with investigating this case were convinced that two complainants, [XXX] and [XXX], were honest and credible. This view was reinforced by the CAS investigator as well. She argued that “students this age do not lie”. In fact, evidence led revealed that some of the students did lie. Two of the students who offered information were left out of the investigation because administrators believed that they were more likely not to tell the truth and that one of them, [XXX], was determined to have already told a lie. The Committee considered these statements and views and came to the conclusion that the principal, vice-principal and the CAS investigator were not experts on the issue of student truth telling. No evidence was led to establish if young people of this age do indeed lie or are generally trustworthy (and the Committee doubts that such expert evidence exists).
The contention of College counsel was that the quality of the investigation had no bearing on the integrity of the investigation. The inconsistencies, whatever they were, are completely irrelevant to what happened in the computer lab. The Committee chose not to accept this statement. The investigation and its quality were significant in establishing the issue of credibility. The review of evidence is such that it must satisfy the requirements of clarity, consistency, and cogency. This is necessary in determining a matter based on the balance of probabilities standard of proof.
College counsel ended his submission by the assertion that it was more likely that the Member lost her composure, hit students, yelled at students, switched lights on and off, and was generally frustrated by her loss of control of the classroom. The end result was an act of professional misconduct. The Member’s “bald denial” of all allegations should be discounted. The Member offers no alternative explanation for her behaviour. A finding of professional misconduct should be made and should be based on the nature of the behaviour described.
The Submission of Member’s Counsel
Member’s counsel posited the theory that the College has the obligation of proof that is clear, cogent and consistent and meets the balance of probabilities. Member’s counsel suggested that the College has not met this requirement. In fact the evidence is confusing.
According to the Member’s counsel, College counsel raised many evidentiary issues.
The issue of the note to the principal is significant. How did it get written? Why does the note miss several issues, for example the hit to [XXX]’s arm? Why does a student who was not a witness to the alleged abuse have her name on the note? Why were some of the students so concerned about [XXX]’s name appearing on the note?
Why did the Member go on to her next occasional assignment? Why was she permitted to do so? Was the evidence such that there was no real concern?
The Member’s counsel raised many issues about the investigation. Why did the investigation start so long after the incident? Why did the investigation have to wait for the vice-principal’s break from her teaching duties? Why was there no occasional teacher summoned for the next day so that the vice-principal could begin the investigation immediately?
The photos were taken the next day. Ms. Major saw the marks and took the photos. However, in her interview with the CAS, the mother of [XXX] states that she never saw any marks on her daughter on the day of the alleged incident. The CAS investigator, who checked [XXX]’s arm just hours after Ms. Major, did not see any marks. The photos in themselves are inconclusive as no marks were visible. The school investigation neglected to ask the student witnesses where they were at the time of the alleged physical abuse. The question of where students were in relation to the complainants while in the computer lab or in the hallway was never posed to the students interviewed.
There is a difference between student written accounts and their oral accounts with notes being taken by the investigators. The other students were not brought forward as witnesses to account for the discrepancies.
There was no concern about the possibility of students talking to each other and exchanging viewpoints while the investigation was being conducted. The school investigators did not appear to be concerned about this possibility and the tainting of evidence. The issue of the sharing of information was not properly investigated by the principal and vice-principal.
Member’s counsel asserted that the case was about credibility. Adult witnesses were asked about the truth of this case and were asked about students as witnesses. They were asked if kids were good kids or students with behavioural problems. Other students were labeled as believable in that they had a history of credibility and truthfulness. Member’s counsel cautioned the Committee not to use the same approach to testing credibility that a teacher might be apt to do.
Member’s counsel was concerned that the principal and vice-principal asserted that they had concluded that the incidents had occurred and therefore, it was not necessary to interview all of the students or to ask too many questions. At the end of the day, the vice-principal and the principal concluded that all of the evidence was consistent. Member’s counsel contended that this was not the case. She suggested that perhaps the principal was no longer listening to the evidence.
Member’s counsel commented on the weaknesses in the CAS interviews. Not all students were interviewed. There was a serious gap in this regard. The CAS investigator used the vice-principal’s list as to whom to interview. The Member’s counsel said that the CAS investigator thought that “stories are same enough” but that the stories are not same enough but, in fact, different.
The Member’s counsel maintained that the College has not discharged its burden of establishing proof on a balance of probabilities based on clear, convincing and cogent evidence.
Summary
The Committee received argument from both counsel and advice from independent legal counsel about the issues surrounding the problem of determining credibility.
Member’s counsel presented Faryna v. Chorny (May 16, 1951, British Columbia Court of Appeal). This decision articulates many of the issues surrounding credibility of witnesses and, even though dated, still serves in a useful manner. This case argues that demeanour is insufficient as a test for credibility. Additionally, “the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of witnesses”. What is required to establish credibility is “harmony with a preponderance of the probabilities which a practical and informed person would readily recognize as reasonable”.
The Committee was of the opinion that the “credibility” arguments based on Pitts are more current and useful. However, these arguments do reinforce the position taken in Faryna v. Chorny. The view of the Committee about credibility is established above in the section of the decision that is entitled “Onus and Standard of Proof”.
The Committee also considered submissions about hearsay evidence and the problem this poses in the assessment of credibility. There were only three witnesses who could provide direct evidence as to the events of the day, that is, two students and the Member. All other information about the allegations of physical abuse can be deemed to be some level of hearsay.
The evidence provided through the investigation of Ms. Ross can be characterized as largely hearsay, in that it relied heavily on evidence given by the two students to her. This report also conveyed what one child told another child or what was told to an adult investigator. None of the persons interviewed by Ms. Ross, except for the two student witnesses who were complainants, were brought forward during the hearing for direct examination or cross-examination.
The evidence given by the principal and vice-principal was also hearsay as it reflects what persons not actually seeing the incident conveyed to the two administrators. Their observations were conveyed to them by others. Most of the witnesses spoken to by the school investigators did not see any of the alleged physical abuse.
There appears to be very little direct evidence available in this matter.
The Committee was concerned that the evidence of the CAS investigator could in fact be generally viewed as in the nature of oath-helping, that is, evidence intended to bolster the version of events put forward by other witnesses. The Committee took advice on this matter. Sopinka offers the opinion which enforces the principle that “the trier of fact” must decide the truth for themselves. It was not of assistance to the Committee to know that Ms. Ross found the students to be believable; the Committee was faced with the task of deciding the case on its own after assessing the evidence of all of the witnesses. In this case the most helpful evidence to the committee was that of [XXX], [XXX] and the Member.
College counsel raised the issue of contemporaneous notes. He argued that these are not hearsay and are clearly reflective of what happened. Unfortunately, the contemporaneous notes in this matter are contradictory and confusing.
The Committee looked at inconsistencies in testimony and gave the most weight to the
“direct evidence” it heard. The matter was primarily one of credibility and consistency. Unfortunately, in this matter, there was a great deal of inconsistency. Only the testimony of the Member had the internal consistency that established a basis for credibility.
In all the circumstances, the Committee felt that the College had not discharged the onus
of proof on a balance of probabilities.
Dated: April 12, 2012
Mel Greif
Chair, Discipline Panel
______________________________Alexander (Sandy) Bass, OCT
Member, Discipline Panel
_____________________________Darlene Mead, OCT
Member, Discipline Panel