Ontario College of Teachers v Hamelin, 2013 ONOCT 48

Citation: Ontario College of Teachers v Hamelin, 2013 ONOCT 48

Date: 2013-04-17

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

Gregory Philip Henry Hamelin, a member of the Ontario College of Teachers.

PANEL: Pauline Smart, Chair Irene Dembek, OCT Hanno Weinberger, OCT

BETWEEN:

ONTARIO COLLEGE OF TEACHERS David Leonard, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Litigation Paraprofessional

and –

GREGORY PHILIP HENRY HAMELIN (CERTIFICATE #392531) Gregory Philip Henry Hamelin was not present, nor was he represented by counsel

Marc Spector, Steinecke Maciura LeBlanc, Independent Legal Counsel

Heard: April 17, 2013

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on April 17, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated December 12, 2012 was served on Gregory Philip Henry Hamelin, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on January 17, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for April 17, 2013.

The Member was not present nor was he represented by legal counsel.

Counsel for the College confirmed that the Member indicated at a pre-hearing on April 15, 2013 that he did not intend to attend or participate in the hearing. The Committee was satisfied that the Member was duly informed of the date and time of the hearing and the penalty sought and proceeded with the hearing.

THE ALLEGATIONS

The allegations against Gregory Philip Henry Hamelin (the “Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that Gregory Philip Henry Hamelin is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act in that:

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

(b) he abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) and/or engaged in sexual abuse of a student or students defined in section 1 of the Act;

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

(e) 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 or the Act;

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

(g) 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);

(h) 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);

(i) 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

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

Gregory Philip Henry Hamelin (the “Member”) is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the District School Board of Niagara as a teacher at [XXX] School (the “School”) in [XXX] .
During the 2009-2010 academic year, the Member was the teacher of a female student (Student “A”) at the School.
During the 2008-2009 academic year, the Member was the teacher of a female student (Student “B”) at the School.
During the 2007-2008 academic year, the Member was the teacher of a female student (Student “C”) at the School.
During the 2002-2003 academic year, the Member was the teacher and/or [XXX] of a female student (Student “D”) at the School.
During the 2002-2003 academic year, the Member was the [XXX] of a female student (Student “E”) at the School.
From around March 2010 until around August 2010, the Member gave Student “A” a “chore list” which included but was not limited to:

(a) going into a dark room with him;

(b) going deep into the woods with him;

(d) watching a movie with him.

On or around August 1 and 2, 2010, the Member communicated comments electronically to Student “A” which were of a sexual nature.
During or around July and August 2009, the Member communicated comments electronically to Students “B” and “C” which were of a sexual nature.
On one occasion between January 1 and June 30, 2003, the Member engaged Student “D” in a game of “truth or dare” which resulted in Student “D” removing her clothing in a public place.
On one occasion between during or around April-May 2003, the Member engaged Student “E” in a game of “truth or dare” which resulted in Student “E” kissing on the mouth her friend Student “D” and the Member’s son.
On or about December 5, 2011, the Member was found guilty of the following charges:

(a) between August 1 and 2, 2010, at the City of [XXX] in the [XXX] Region did, by means of a computer system within the meaning of subsection 342.1(2) of the Criminal Code, communicate with a person, namely Student “A”, who was or was believed to be under the age of 14 years, for the purpose of facilitating the offence of Invitation to Sexual Touching, contrary to subsection 172.1(1)(b) of the Criminal Code of Canada;

(b) between August 1 and 2, 2010, at the Town of [XXX] in the [XXX] Region did, for a sexual purpose, invite a person under the age of sixteen years, namely Student “A”, to directly touch with a part of her body the body of Gregory Hamelin, contrary to section 152 of the Criminal Code of Canada;

(c) between July 1 and August 31, 2009, at the Town of [XXX] in the [XXX] Region did, for a sexual purpose, invite a person under the age of sixteen years, namely Student “B”, to directly touch with a part of her body the body of Gregory Hamelin, contrary to section 152 of the Criminal Code of Canada;

(d) between July 1 and August 31, 2009, at the Town of [XXX] in the [XXX] Region did, for a sexual purpose, invite a person under the age of sixteen years, namely

Student “C”, to directly touch with a part of her body the body of Gregory Hamelin, contrary to section 152 of the Criminal Code of Canada; and

(e) between April 1 and May 31, 2003, at the City of [XXX] in the [XXX] Region, and elsewhere in the Province of Ontario, did, being a person in a position of trust or authority towards a young person, for a sexual purpose, invite that young person, namely Student “E”, to directly touch with a part of her body the body of Student “D”, contrary to Section 153, subsection (1), clause (b) of the Criminal Code of Canada.

On or about April 18, 2012, the Member was sentenced to 12 months in jail in addition to 19 days of pre-sentence custody served. At the completion of the Member’s incarceration, he is to serve three years of probation, with the following conditions:

(a) the Member is not to be in the presence of anyone under the age of 16 unless in the presence of the child’s parent or guardian who is aware of his conviction;

(b) the Member is not to use a computer unless for the purpose of school or employment, and not without installing and activating a program that allows his probation office to monitor the Member’s use; and

PUBLICATION BAN

A non-publication and non-broadcast order was issued under subsection 486.4 and 517(1) of the Criminal Code of Canada, in the proceedings in the Ontario Court of Justice. The Committee is required to uphold this publication ban imposed in the matter of Her Majesty The Queen v. Gregory Hamelin by the Ontario Court of Justice. There shall be no publication of any information that might tend to identify the victims 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

Counsel for the College entered into evidence the following additional documents:

Registered Member Information (Exhibit 2); and

Brief of Court Documents - Her Majesty The Queen v. Gregory Hamelin (Exhibit 3).

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

A. Certified Copy of Information and Appearances dated August 18, 2010 to

April 18, 2012 (found at Tab A);

B Certified Copy of Recognizance of Bail dated August 24, 2010 (found at Tab B);

C. Certified Copy of Probation Order dated December 5, 2012 (found at Tab C);

D. Transcript of Proceedings at Guilty Plea before the Honourable Justice D.T. Vyse –December 5, 2011 (found at Tab D);

E. Transcript of Proceedings before the Honourable Justice D.T. Vyse –January 20, 2012 (found at Tab E);

F. Transcript of Submissions on Sentencing before the Honourable Justice D.T. Vyse – March 1, 2012 (found at Tab F);

G. Transcript of Reasons for Sentence before the Honourable Justice D.T. Vyse – April 18, 2012 (found at Tab G).

The evidence presented in the Brief of Court Documents (Exhibit 3) confirmed that on December 5, 2011, the Member was found guilty of the following five (5) charges:

(a) between August 1 and 2, 2010, at the City of …did by means of a computer system within the meaning of subsection 342.1(2) of the Criminal Code, communicate with a person, namely Student “A”, who was or was believed to be under the age of 14 years, for the purpose of facilitating the offence of Invitation to Sexual Touching, contrary to subsection 172.1(1)(b) of the Criminal Code of Canada;

(b) between August 1 and 2, 2010, at the Town of … did, for a sexual purpose, invite a person under the age of sixteen years, namely Student “A”, to directly touch with a part of her body the body of Gregory Hamelin, contrary to section 152 of the Criminal Code of Canada;

(c) between July 1 and August 31, 2009, at the Town of … did, for a sexual purpose, invite a person under the age of sixteen years, namely Student “B”, to directly touch with a part of her body the body of Gregory Hamelin, contrary to section 152 of the Criminal Code of Canada;

(d) between July 1 and August 31, 2009, at the Town of … did, for a sexual purpose, invite a person under the age of sixteen years, namely Student “C”, to directly touch with a part of her body the body of Gregory Hamelin, contrary to section 152 of the Criminal Code of Canada; and

(e) between April 1 and May 31, 2003, at the City of …, and elsewhere in the Province of Ontario, did, being a person in a position of trust or authority towards a young person, for a sexual purpose, invite that young person, namely Student “E”, to directly touch with a part of her body the body of Student “D”, contrary to Section 153, subsection (1), clause (b) of the Criminal Code of Canada.

On April 18, 2012, the Member was sentenced to twelve (12) months in jail in addition to nineteen (19) days of pre-sentence custody served, to be followed by a three (3) year probationary period. The Member is also prohibited, for the next twenty (20) years, pursuant to section 161of the Criminal Code of Canada, from the following conditions:

(a) the Member is not to be in the presence of anyone under the age of 16 unless in the presence of the child’s parent or guardian who are aware of his conviction;

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, where he pled guilty to five (5) charges and did not challenge the facts as presented. College Counsel submitted that based on Rules 13.03 and 13.04 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee the Committee could rely on the findings of fact at the criminal proceeding and the convictions of the Member on multiple counts which included computer communication (luring), section 172.1(1) (b), sexual interference x 3, section 152, and invitation to touch, section 153(1) (b) of the Criminal Code of Canada. College Counsel submitted that the Member’s criminal convictions, on all counts, are sufficient evidence for this Committee to make a finding of professional misconduct as alleged in the Notice of Hearing.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Gregory Philip Henry Hamelin committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 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 or students as defined in section 1 and subsection 40(1.1) of the Act.

REASONS FOR DECISION

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 Committee accepts as fact, as detailed in the Brief of Court Documents contained within Exhibit 3, that on December 5, 2011 the Member pled guilty to and was convicted of five (5) counts, which included computer communication (luring), sexual interference x 3, and invitation to touch.

On April 18, 2012 the Member was sentenced to twelve (12) months in jail followed by a three year probationary period. The Member has not appealed the convictions or sentence.

According to court documents (Exhibit 3), for a period of approximately seven (7) years and involving five (5) female students [XXX] years of age and younger, the Member engaged in inappropriate conduct of a sexual nature. This included electronic communication of a sexual nature with the students, sexual interference and encouraging sexual touching between two students. The Committee finds that the Member’s actions and the resulting criminal convictions in relation to these students constitute professional misconduct as alleged.

SUBMISSIONS ON PENALTY

Counsel for the College submitted that revocation of the Member’s Certificate of Qualification and Registration, and publication with name was the appropriate penalty for such grave misconduct.

Counsel submitted that only revocation would protect the public interest. Counsel noted that the Member’s probation restricts his access to anyone under the age of 16 and revocation is necessary to protect students. He further noted that the Member’s misconduct involved five female students over a period of several years. College Counsel submitted that medical evidence was presented at the criminal trial, but the medical practitioners deferred the risk to re-offend, making no finding in this regard. (Exhibit 3, Tab G, page 12)

Counsel submitted that publication of the Member’s name was appropriate given the gravity of the misconduct. The hearing was open to the public and the College’s disciplinary procedure is transparent. Therefore, publication with name should follow.

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) Pursuant to paragraph 3 of subsection 5 of section 30 of the Ontario College of Teachers Act, the findings and Order of the Committee shall be published in summary, with the name of the Member in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY

The Member pled guilty to and was criminally convicted of five (5) counts, which included computer communication (luring), sexual interference x 3, and invitation to touch. The activities that led to these criminal convictions occurred at the Member’s farm, in his car, and at a public park, involved five female students over a period of several years.

The Committee found that the Member took advantage of his privileged position of trust and authority as a teacher over a group of vulnerable students. In reviewing the victim impact statements (Exhibit 3, Tab E) the Committee read comments such as: “I no longer trust people, especially teachers;” “I felt like I could not trust men in general;” “I felt petrified.” These victims also described feelings of low self-esteem, inability to cope and extreme paranoia.

The Committee finds the Member’s conduct and the resulting criminal convictions to be disgraceful, dishonourable, and unbecoming a member of the profession. The Member has forfeited the privilege of holding a teaching certificate. Revocation is the appropriate penalty for misconduct of this severity.

The Committee finds there are compelling reasons to publish the Member’s name in Professionally Speaking/Pour parler profession. Publication of the findings and Order of the Committee, in summary, along with the name of the Member, identifies to the profession and the public, the serious nature of the Member’s misconduct and the consequences of such behavior.

Revocation and publication with name serves as a specific and general deterrent, informing members of the College that they are expected to act professionally with students and maintain appropriate teacher/student boundaries at all times. The Committee also believes it is important to communicate to the public and the profession that members of the College are bound by the standards of the profession, regardless of the setting.

The Committee is satisfied that the penalty serves and protects the public interest.

Dated: April 17, 2013

Pauline Smart, Chair, Discipline Panel

Irene Dembek, OCT Member, Discipline Panel

Hanno Weinberger, OCT Member, Discipline Panel