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 James Douglas Welch, a member of the Ontario College of Teachers.
PANEL: Alexander (Sandy) Bass, OCT, Chair Irene Dembek, OCT John Tucker
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Larissa Moscu, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela De Bartolo, Litigation Paraprofessional
- and –
JAMES DOUGLAS WELCH (CERTIFICATE #238593) Patricia D’ Heureux, Cavalluzzo Hayes Shilton McIntyre & Cornish LLP for James Douglas Welch
Julie Maciura, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: November 21, 2012
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on before a panel of the Discipline Committee (the “Committee”) on November 21, 2012 at the Ontario College of Teachers (“the College”) at Toronto.
A Notice of Hearing, dated September 16, 2011 was served on James Douglas Welch, requesting his presence on October 11, 2011 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for November 21, 2012.
James Douglas Welch was not in attendance.
THE ALLEGATIONS
IT IS ALLEGED that James Douglas Welch is guilty of professional misconduct as defined in subsection 30(2) 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 failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsection 1(15);
(c) 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);
(d) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19); and
(e) he failed to abide by a written undertaking given by the Member to the College and/or by an agreement entered into by the Member with the College, Ontario Regulation 437/97, subsection 1(24).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
James Douglas Welch (the “Member”) is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Peel District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Brampton, Ontario.
During the 2009-2010 academic year, the Member:
a. on or about January 21, 2010, possessed the image of a nude woman on his classroom computer, which was viewed by a Grade [XXX] student;
b. downloaded and/or accessed and/or viewed and/or saved numerous other inappropriate images and/or nude images of women on his classroom computer;
The Member in possessing these inappropriate and/or nude images on his classroom computer failed to abide by a written undertaking given by the Member to the College on or about July 25, 2006, whereby the Member agreed and undertook not to utilize School or Board computers for viewing, accessing and/or downloading inappropriate or pornographic images and/or materials.
The Member resigned from the Board effective February 29, 2010.
STATEMENT OF UNCONTESTED FACTS
James Douglas Welch (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 Peel District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Brampton, Ontario.
On or about Thursday, January 21, 2010, the Member attended an in-school professional development opportunity during which time a Peel Regional police officer made a presentation on Internet Safety to the Member’s grade [XXX] class.
As the police officer plugged her data stick into the Member’s classroom computer, the image of a nude woman was instantly displayed and was viewed by a grade [XXX] student.
Further review of the Member’s classroom computer revealed numerous other inappropriate and/or nude images of women downloaded and/or accessed and/or viewed and/or saved by the Member on his classroom computer. Attached to Exhibit 2 and located at Tab “B” are copies of the inappropriate and/or nude images.
Further, the Member, in possessing these inappropriate and/or nude images on his classroom computer, failed to abide by a written undertaking given by the Member to the College on or about July 25, 2006, whereby the Member agreed and undertook not to utilize School or Board computers for viewing, accessing and/or downloading inappropriate or pornographic images and/or materials. Attached to Exhibit 2 and located at Tab “C” is a copy of the Memorandum of Agreement between the Ontario College of Teachers and James Douglas Welch dated June 8, 2006 and June 22, 2006 respectively.
The Memorandum of Agreement was ratified by the Investigation Committee on July 25, 2006. Attached to Exhibit 2 and located at Tab “D” is a copy of same.
The Member resigned from the Board effective February 28, 2010.
PLEA OF NO CONTEST
By this document, the Member admitted, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in paragraphs 1 to 8 above (the “Uncontested Facts”).
The Member hereby acknowledged that the Uncontested Facts referred to in paragraphs 4 to 6 above, constitute 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(15), 1(18), 1(19) and 1(24).
By this document, the Member stated that:
(a) he understood fully 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 was executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the uncontested facts and circumstances, the Ontario College of Teachers and the Member submitted that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that James Douglas Welch committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18) - disgraceful, 1(19) and 1(24).
REASONS FOR DECISION
In the Statement of Uncontested Facts (Exhibit 2), the Member admitted that he engaged in behaviour that involved possessing inappropriate and/or nude images on his classroom computer. On this occasion, the image of a nude woman was briefly displayed and was viewed by a grade [XXX] student. Further, the Member failed to abide by a written undertaking given by the Member to the College on or about July 25, 2006, whereby the Member agreed and undertook not to utilize School and/or Board computers for viewing, accessing and/or downloading inappropriate or pornographic images and/or materials.
Based on the Member’s admissions, the Member is a repeat offender in that this was an advertent contravention of the Memorandum of Agreement. The Member acknowledged that the uncontested facts constitute conduct which is professional misconduct.
In light of the admissions made by the Member contained within the Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), the Committee found that the Member committed the acts of misconduct as alleged.
JOINT SUBMISSIONS ON PENALTY
Through a Joint Submission on Penalty (Exhibit 4), Counsel for the College and the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee should order the immediate revocation of the Member’s Certificate of Qualification and Registration.
The parties had not agreed on whether or not the Member’s name should be published and made submissions on that issue.
SUBMISSIONS RE: PUBLICATION
Counsel for the College submitted that the Member was subject to a Memorandum of Agreement, which he breached. The Member agreed to have his certificate revoked. Counsel for the College stated that revocation is ineffective without full publication. Counsel for the College further submitted that the hearing is open to the public and that publication with name shows transparency of the process and acts as a general deterrent to members of the profession.
Counsel for the College provided three cases to the Committee, which she suggested were less egregious in nature but still resulted in full publication with name.
Counsel for the Member submitted that the Member agreed with the facts as submitted and agreed to have his certificate revoked, but requested that publication be without name. Counsel for the Member stated that the cases provided by the College were quite distinguishable from the case before the Committee in that the Member’s conduct was not directed at students. Counsel for the Member submitted that the Member’s conduct was inadvertent, brief and that there was no evidence before the Committee to suggest that the student exposed to the image was harmed. Counsel for the Member stated that transparency does not require that the Member’s name be published. Counsel submitted that the Member took full responsibility, resigned from the profession and now works in a field unrelated to teaching. Counsel asked that the Committee consider the Member’s right to privacy and to balance that with the mandate of the College to protect the public interest.
Counsel for the Member reminded the Committee that the Notice of Hearing is posted on the College website containing all of the facts and the Member’s name. Counsel submitted that the Committee should redact the Notice of Hearing to remove the Member’s name as the Member has already paid dearly both professionally and personally.
In response, Counsel for the College reminded the Committee that full publication in the official publication of the College, Professionally Speaking/Pour parler profession, is what is being addressed in the submissions on full publication. Counsel for the College further submitted that full publication serves as a general deterrent to the College members as it reminds teachers of the level of professionalism expected as well as informs the public that “all levels of misconduct will be treated seriously”.
PENALTY
The Committee makes the following order as to penalty:
a. directs the Registrar of the Ontario College of Teachers to revoke the Certificate and Qualification and Registration of the Member, which Certificate the Member is to immediately surrender to the Registrar; and
b. directs that there be publication of the findings and Order of the Committee in summary form, including the Member’s name, in the official publication of the College, Professionally Speaking/Pour parler profession.
REASONS FOR PENALTY DECISION
The Member acknowledged that the uncontested facts constitute conduct which is professional misconduct and agreed that revocation is the appropriate penalty. The Committee agrees that revocation is an appropriate penalty in these circumstances.
The Member’s contravention of the Memorandum of Agreement to not utilize School or Board computers for viewing pornographic images was unacceptable to the Committee. Possession of pornographic material on a school computer is disgraceful conduct and will not be tolerated by this Committee.
The Committee asserts that publication with name acts as a specific deterrent to this Member and serves as a general deterrent to all of the profession that engaging in similar conduct will result in the harshest of penalties.
Date: November 21, 2012
Alexander (Sandy) Bass, OCT Chair, Discipline Panel
Irene Dembek, OCT Member, Discipline Panel
John Tucker Member, Discipline Panel