Ontario College of Teachers v. Aaron Weston Michael Aird, 2013 ONOCT 3

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Date: 2013-12-04

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

Aaron Weston Michael Aird, a member of the Ontario College of Teachers.

PANEL: Christine Bellini, OCT, Chair Darlene Mead, OCT

Pauline Smart

BETWEEN: ) ) David Leonard,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,

) Litigation Paraprofessional )

• and – )

) Aaron Weston Michael Aird was not ) present or represented

AARON WESTON MICHAEL AIRD )

(CERTIFICATE #564130) )

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: November 22, 2013

DECISION, REASONS FOR DECISION AND ORDERS

This matter was scheduled for hearing before a panel of the Discipline Committee (the “Committee”) on November 22, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

Motion for Adjournment

Prior to the commencement of the hearing, Jackie Sellyeh, acting as Agent for the Member, requested an adjournment. The Agent stated that the Member did not receive disclosure in a timely manner. She requested time to review the case with the Member and time to prepare for a hearing. The Agent stated that there is an appeal in progress and, in the issue of fairness, the hearing should not commence until the appeal was concluded. The Agent stated that the Member was at work and the Member felt he could not miss work due to the terms of his probation. The Agent indicated that the Member required support due to a learning disability and referenced it as “Acquired Brain Injury” (“ABI”)”. She requested more time to prepare. She initially requested that the hearing be delayed until June 27, 2014 but indicated that if this was not possible, that the hearing be delayed approximately eight (8) weeks so that support could be put in place for the Member.

College Counsel opposed the adjournment request. Counsel provided documentation, through an Affidavit of Annie Lacroix, affirmed November 21, 2013 (Exhibit 1 to Motion) confirming disclosure had been made in a timely manner. On October 10, 2013, (Exhibit 1, Tab F) College Counsel provided the Member with additional documentary disclosure, namely, the Reasons for Judgment, Reasons for Sentence, and Decision of the Court of Appeal for Ontario regarding the Member’s criminal conviction.

College Counsel stated that the Member had appealed his conviction and sentence, which appeal was dismissed on June 27, 2013. The only other avenue of appeal for the Member would be to the Supreme Court of Canada which had a 30-day window for appeal and that timeframe has since passed. Annie Lacroix, in her Affidavit (Exhibit 1) states that on November 20, 2013 she searched the Supreme Court of Canada’s website listing all cases filed and could find no listing for the Member. It would appear that the Member has not taken steps to appeal his conviction to the Supreme Court of Canada.

Counsel noted with respect to the Member’s claim of ABI, that the Member had been involved in a motor vehicle accident approximately twelve (12) years ago. Since then, the Member was able to achieve two university degrees and obtain employment as a teacher.

College Counsel noted that the Member was convicted of sexual exploitation and sexual touching in June 2011. Given the Member’s appeal of his criminal conviction in December 2012, the College agreed to put the current proceeding on hold for a reasonable amount of time. Following dismissal of the Member’s appeal on June 27, 2013, the College initiated attempts to schedule a hearing date.

College Counsel advised that the Member refused to consider hearing dates before the end of June 2014, citing terms and conditions of his probation that prevented him from attending a hearing. College Counsel asked the Member to provide documentation or communication that would prevent the Member from attending a hearing, but none was received.

In response to the Agent’s request to have more time to prepare, College Counsel stated that the Member was aware of these proceedings since November 14, 2012. Further, the allegations in this proceeding mirrored those of the criminal proceedings that took place in June 2011. College counsel submitted that the Member has had ample time to prepare for this hearing.

In accordance with section 21 of the Statutory Powers Procedure Act, the Committee denied the Member’s request for an adjournment taking into account Rule 14.01 (2) of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee of the Ontario College of Teachers.

The Committee considered the sufficiency of the reasons advanced for the request to adjourn. The Committee did not find any evidence to support the Agent’s claim that the Member did not receive disclosure in a timely manner. The Committee accepted the Affidavit of Annie Lacroix to substantiate that disclosure was made in a timely manner. With respect to the Agent’s remarks that there was an appeal in process, the Committee accepted College Counsel’s submissions regarding the Supreme Court of Canada appeal process and that no appeal by the Member could be found on the public registry’s website (Exhibit 1). The Committee noted contradictory statements regarding the Member’s employment or inability to obtain employment as stated by the Agent. The Agent indicated the Member could not attend due to probationary restrictions but did not provide any documentation in support of this claim.

The Committee took into consideration that this was the first official request for an adjournment but noted that College Counsel did not attempt to schedule a hearing until the appeal process was concluded in June 2013.

The Agent indicated that the Member required extra time to prepare for the hearing because of an “Acquired Brain Injury”. No evidence was presented to the Committee of the presence of ABI or what effect it might have on the Member’s ability to participate in the hearing process.

The request for an adjournment on the day the hearing was scheduled, was not timely. Given that the Member has a criminal conviction dating back to 2011 for exploitation and sexual touching of a student, and he remains a member in Good Standing with the College, the Committee denied the request for an adjournment and proceeded with the hearing as scheduled.

The Hearing

After denying the adjournment request, the hearing of this matter commenced at 12:30 p.m.

A Notice of Hearing (Exhibit 1), dated October 30, 2012 was served on Aaron Weston Michael Aird, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on November 28, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for November 22, 2013.

The Member was not present and his Agent, who represented him on the adjournment request, did not stay to represent him at the hearing.

THE ALLEGATIONS

The allegations against Aaron Weston Michael Aird (the “Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that Aaron Weston Michael Aird is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(d) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(e) he contravened a law the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(f) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(g) 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); and

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Aaron Weston Michael Aird (the “Member”) is a member of the Ontario College of Teachers.

2. In the fall of 2008, the Member was a student teacher with the Waterloo Catholic District School Board (the “Board”).

3. At all material times, the Student was a [XXX] year-old female student of the Board. The Member was hired by the Student’s parents to tutor her.

4. Between September 2009 and June 2011, the Member was employed as a teacher at the Waterloo Region District School Board.

5. Between September 2008 and December 2008, the Member engaged in an inappropriate personal relationship with the Student.

6. Between November 2008 and March 2010, the Member engaged in a sexual relationship with the Student, including but not limited to:

(a) Kissing;

(b) Sexual touching;

(c) Sexual intercourse;

(d) Electronic communication of a sexual nature.

7. On or about March 17, 2010, the Member was criminally charged with two counts of sexual exploitation, regarding his relationship with the Student.

8. On or about June 22, 2011, the Member was found guilty of the charges that, between September 4, 2008 and November 25, 2009, he committed an act of sexual exploitation and an act of sexual touching, contrary to Sections 153 (1)(a) and (b) of the Criminal Code (Canada).

9. The Member was sentenced to 12 months in jail and 12 months of probation.

10. The Member is appealing his criminal conviction and sentence.

PUBLICATION BAN

A non-publication order (Exhibit 3, Tab C) was issued under subsection 486.4 of the Criminal Code (Canada), in the proceedings in the Ontario Court of Justice. The Committee is therefore required to uphold this publication ban imposed in the matter of Her Majesty The Queen v. Aaron Aird by the Superior Court of Justice. There shall be no publication of any information that might tend to identify the victim involved in this matter.

MEMBER’S PLEA

As the Member was not present or represented by counsel, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair, on behalf of the Member, entered a plea of not guilty to the allegations.

THE EVIDENCE

College Counsel entered into evidence the following additional documents:

Registered Member Information (Exhibit 2); and

Brief of Court Documents - Her Majesty The Queen v. Aaron Aird (Exhibit 3).

The Brief of Court Documents (Exhibit 3) with respect to the criminal proceedings against the Member submitted into evidence consisted of:

1. Certified Copy of Indictment (found at Tab A);

2. Certificate of Conviction dated November 8, 2011 (found at Tab B);

3. Transcript of Proceedings at Trial – Reasons for Judgment and Reasons for Sentence – before the Honourable Mr. Justice J.W. Sloan – on June 22 and October 20, 2011 (found at Tab C);

4. Decision of the Court of Appeal for Ontario dated June 27, 2013 (found at Tab D).

The evidence presented in the Brief of Court Documents (Exhibit 3) confirmed that on June 22, 2011, the Member was found guilty of the charges that, between September 4, 2008 and November 25, 2009, he committed an act of sexual exploitation and an act of sexual touching, contrary to sections 153 (1)(a) and (1)(b) of the Criminal Code (Canada).

On October 20, 2011, the Member was sentenced to twelve (12) months in jail to be followed by twelve (12) months of probation. The Member appealed the criminal convictions and sentence and the appeal was dismissed on June 27, 2013.

SUBMISSIONS ON FINDING

College Counsel submitted the Brief of Court documents (Exhibit 3) in support of the allegations in the Notice of Hearing. The Member was represented by counsel in the criminal proceedings.

College Counsel made submissions that the Member failed to maintain the standards of the profession by engaging in an inappropriate personal relationship with a [XXX] year old student that progressed for the next two years into a sexual relationship. The relationship began while the Member was a student teacher and was hired to tutor the Student. The Member engaged in this abuse prior to becoming a certified teacher and continued long after he was issued a certificate.

Counsel submitted that the Student was a vulnerable young person. The Member was in a position of trust and authority and put the Student at risk. This impacted her sexual, psychological and emotional well-being.

College Counsel submitted that the Member engaged in conduct unbecoming that would be regarded as disgraceful, dishonourable and unprofessional and submitted that there was sufficient evidence to warrant a finding of professional misconduct under all the heads of misconduct alleged in the Notice of Hearing.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Aaron Weston Michael Aird committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1 (15), 1(16), 1 (17), 1(18) and 1(19).

The Committee further finds that the Member engaged in sexual abuse of a student as defined in section 1 and subsection 40(1.1) of the Act.

REASONS FOR DECISION

The Committee accepts as fact, as detailed in the Brief of Court Documents contained within Exhibit 3, that on June 22, 2011 the Member was convicted of sexual exploitation and sexual touching and on October 20, 2011 was sentenced to twelve (12) months in jail to be followed by twelve (12) months of probation. The Member appealed the criminal convictions and sentence and the appeal was dismissed on June 27, 2013.

The law of evidence and Rules 13.03 and 13.04 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee of the Ontario College of Teachers allow the Committee to accept a certificate of conviction as proof that an offence was committed by a person, where there is a finding of guilt and conviction in a Canadian court, provided that there is no evidence to the contrary and that no appeal has been granted. The Member has not appealed the conviction or the sentence.

Between September 2008 and December 2008, the Member engaged in an inappropriate personal relationship with the Student. Between November 2008 and March 2010, the Member engaged in a sexual relationship with the Student, which included kissing, sexual touching, sexual intercourse and electronic communication of a sexual nature.

The Committee finds that the Member’s actions and attendant criminal convictions for sexual exploitation and sexual touching of the Student constitute acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1 (17), 1(18) and 1(19) and further that the Member engaged in sexual abuse of a student as defined in section 1 and subsection 40(1.1) of the Act.

SUBMISSION ON PENALTY

College Counsel submitted that revocation of the Member’s Certificate of Qualification and Registration, and publication with name was the appropriate penalty for the gravity of the misconduct. The Member has exhibited such an egregious breach of trust that he has forfeited the right to be a member of the teaching profession. Counsel noted that in the court documents the Member showed no remorse for his actions. Therefore revocation is the only way to ensure that this Member will never engage in this conduct again. Revocation sends a message to the public and the teaching profession that this kind of behaviour is abhorrent and will not be tolerated and in doing so, confidence in the profession and the public will be restored.

PENALTY DECISION

The Committee makes the following order as to penalty:

a) The Registrar of the Ontario College of Teachers is directed to revoke the Certificate of Qualification and Registration of the Member; and

b) There shall be publication of the findings and order of the Committee, in summary form, with the name of the Member, in the official publication of the College Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY

The Member and the Student met in September of 2008. The Member was 28 and in his second year of teachers’ college. The Student was [XXX] and in grade [XXX]. The Member was hired by the Student’s mother to tutor [XXX] sessions that took place twice a week. The Member and the Student started a sexual relationship in November 2008. It began with sexual touching and progressed to oral sex and then sexual intercourse. The Member stopped tutoring the Student in February 2009, but their sexual relationship continued until March 2010, when a close friend persuaded the Student to go to the police. The Member was charged on or about March 17, 2010 with two counts of sexual exploitation.

The Member was subsequently found guilty of sexual exploitation and an act of sexual touching contrary to sections 153(1)(a) and (1)(b) of the Criminal Code (Canada). The Member was convicted of these charges because he engaged in an inappropriate personal and sexual relationship with a student while he was in a position of trust as her tutor.

The Member appealed these convictions and the appeal was dismissed by the Ontario Court of Appeal on June 27, 2013.

The Committee concurs with the submissions of College Counsel on penalty that the Member’s certificate must be revoked and the findings and order be published, in summary with the name of the Member. The sexual activity took place over a fifteen-month period, which is a considerable amount of time. The parents placed the Member in a position of trust and hired him because of his “skill and status” (Exhibit 3, Tab D). The Member breached this trust and used this opportunity to groom their daughter and to engage in an ongoing sexual relationship with her.

The Committee agrees with Justice Sloan’s findings (Exhibit 3, Tab C) that there is “very little if any distinction between the position of trust of a teacher and a tutor under the circumstances of this case. … it was that position of trust that allowed Mr. Aird entre (sic) to the victim and gave him the continuing ability to groom her.”

The Committee took into consideration aggravating and mitigating factors. The Member was in a motor vehicle accident that occurred more than ten years ago and resulted in a brain injury. The Member, to his credit, managed to complete two university degrees after his motor vehicle accident. The Committee concurs with Justice Sloan that the Member’s problems from the motor vehicle accident did not affect his ability to tell right from wrong. Justice Sloan further found that the Member “does not appear to show any remorse and of course the victim has had her sexual innocence taken from her and is left to deal with emotional issues stemming from the offence” (Exhibit 3, Tab C).

The Committee finds that the Member engaged in reprehensible conduct. The Member abused the public trust in a disgraceful manner and has forfeited the privilege of holding a teaching certificate. Revocation is the appropriate penalty and serves as both a specific and general deterrent. Removing this Member from the teaching profession protects students and restores public confidence in the profession. Publication with name advises the profession that misconduct of this severity will result in the most serious penalty.

The Committee is satisfied that the finding and penalty protect the public interest and uphold the standards of the teaching profession.

Dated: December 4, 2013

______________________________ Christine Bellini, OCT

Chair, Discipline Panel ______________________________ Darlene Mead, OCT Member, Discipline Panel

Pauline Smart

Member, Discipline Panel