Ontario College of Teachers v. Macedo, 2013 ONOCT 62

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Macedo, 2013 ONOCT 62

Date: 2013-10-22

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

Allester Gerard Ashley Macedo, a member of the Ontario College of Teachers.

PANEL: Wes Vickers, OCT, Chair Alexander (Sandy) Bass, OCT

Pauline Smart

BETWEEN: ) ) David Leonard,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,

) Law Clerk )

• and – )

ALLESTER GERARD ASHLEY ) Allester Gerard Ashley Macedo

MACEDO ) on his own behalf, in person (CERTIFICATE #206895) )

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: October 16, 2013

DECISION, REASONS FOR DECISION, AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 16, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated March 8, 2013 was served on Allester Gerard Ashley Macedo, requesting attendance before the Discipline Committee of the Ontario College of Teachers on April 10, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 16, 2013.

The Member was present and acting on his own behalf.

THE ALLEGATIONS

The allegations against Allester Gerard Ashley Macedo (the “Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that Allester Gerard Ashley Macedo is guilty of professional misconduct as defined in subsection 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(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 of the Act;

(f) he failed to comply with 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);

(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:

1. Allester Gerard Ashley Macedo (the “Member”) is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Dufferin-Peel Catholic District School Board (the “Board”) as a teacher at [XXX] School (the “School”).

3. At all material times, the [XXX] year old student (the “Student”) was a Grade [XXX] student in the Member’s class.

4. On or about May 29, [XXX], when the Student was writing a test in the Member’s class, the Member:

a) kissed the Student on the cheek on more than one occasion;

b) asked the Student if he could give a kiss and when the Student refused said, “But I love you, don’t you love me?”;

c) touched the Student;

d) told the Student that what happened was their secret.

5. On or about May 29, [XXX], Peel Regional Police charged that the Member unlawfully did commit a sexual assault on the Student contrary to section 271 of the Criminal Code of Canada and that the Member unlawfully, did being in a position of trust or authority towards the Student, a young person, did for a sexual purpose, touch directly the body of the Student, a young person, with a part of his body to wit his hand and lips contrary to section 153(a) of the Criminal Code of Canada.

6. On or about February 8, 2011, the Member was found guilty of the above charges.

7. On July 22, 2011, the Member was sentenced to ninety (90) days jail and two (2) years probation for the charge under section 153(a) of the Criminal Code of Canada. A conditional stay was entered with respect to the charge of sexual assault.

At the hearing on October 16, 2013, College Counsel sought to withdraw the allegations of professional misconduct in paragraphs (b) and (c) in the Notice of Hearing, namely that the Member abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7) and that he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1). The Committee agreed that these allegations should be withdrawn.

MEMBER’S PLEA

The Member denied the allegations set out in the Notice of Hearing.

PUBLICATION BAN

A non-publication order was issued under subsection 486.4 of the Criminal Code (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. Allester Gerard Ashley Macedo 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.

THE EVIDENCE

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

Registered Member Information (Exhibit 2);

Brief of Court Documents-Her Majesty The Queen v. Allester Gerard Ashley Macedo (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 Court Information and Appearances, Undertaking and Promise to Appear – July 20, 2009 to July 23, 2013 (Found at Tab A);

2. Reasons for Judgment – R. v. Macedo, 2011 Carswell Ont 15876, 102 W.C.B. (2nd) 736 – February 8, 2011 (Found at Tab B);

3. Transcript of Reasons for Sentence before the Honourable Justice E.A. Ready on July 22, 2011 (Found at Tab C);

4. Adult Probation Order and Additional Conditions of Probation or Conditional Sentence Order – July 22, 2011 (Found at Tab D); and

5. Superior Court of Justice Summary Conviction Appeal Court Decision – R. v. M., 2012 ONSC 2595 – May 17, 2012 (Found at Tab E).

The evidence presented in the Brief of Court Documents (Exhibit 3) confirmed that on February 8, 2011, the Member was found guilty of the charge that he, on or about May 29, [XXX], unlawfully did commit a sexual assault on the Student contrary to section 271 of the Criminal Code (Canada). Further, the Member was found guilty of the charge that he, on or about May 29, [XXX], unlawfully, while being in a position of trust and authority towards the Student, a young person, did for a sexual purpose, touch directly or indirectly, the body of the Student, a young person, with a part of his body, to wit his hand and lips contrary to section 153(a) of the Criminal Code (Canada).

The Member was a [XXX] teacher at the School. The Student was a [XXX] year old female in the Member’s Grade [XXX] [XXX] class. The Student was an [XXX] [XXX] (“”) student, who was struggling academically in the Member’s class. On May 29, [XXX], the Member supervised a test in the last period of the day. The bell rang signalling the end of the day and the end of the test. Most students left the classroom as they had completed the test. The Student and fellow classmates, approximately [XXX], were given additional accommodation to remain in class and continue the test (Exhibit 3, Tab E, page 5). As the students finished the test, they left the classroom until the Member was left supervising [XXX] students. While supervising these [XXX] students, the Member pinched and kissed the Student’s cheek. After the [XXX] student left the classroom, the Member kissed the Student a number of times, hugged her, and ran his hand from her waist area down quickly to her “butt”. The Member then professed his love for her and asked if she loved him. The Member asked permission from the Student to kiss her. The Student left the classroom after this exchange, almost one hour after the end of the school day. Subsequently, the Member called the Student back to his location in the hallway and said “It’s our secret”. The Student replied, “Okay” and then left.

On July 22, 2011, the Court sentenced the Member to ninety (90) days in jail and two (2) years of probation. The sentence was imposed with respect to the charge of sexual exploitation of the Student. A conditional stay was entered with respect to the sexual assault charge. On January 23, 2012, the Member appealed his conviction and sentence to the Superior Court of Justice – Ontario Summary Conviction Appeal Court. The appeal was dismissed on May 17, 2012.

Testimony of the Member

The Member testified that for the last twenty plus years, he has never been unfaithful to his wife. The Member provided the Committee with information regarding his family. The Member stated that these events have hurt his family, friends and colleagues. The Member testified that he proceeded with a trial in the hope that the judge would “see the truth”. The Member stated that he had no further admissible evidence to submit.

SUBMISSIONS ON FINDING – COLLEGE COUNSEL

College Counsel submitted that the starting and ending point for the Committee’s consideration is the Notice of Hearing. College Counsel stated that the Committee must accept as proven and true the evidence contained in Exhibit 3. College Counsel reviewed for the Committee how the court documents applied to each of the allegations in the Notice of Hearing. College Counsel stated that the Committee is bound to accept as fact that the conduct occurred and that the Member was convicted of the offences.

With respect to failing to maintain the standards of the profession, College Counsel submitted that the Committee has evidence of the Member, who in the course of carrying out his professional duties as a teacher, provided undue assistance to the Student for the purpose of facilitating sexual contact which is a breach of the standards of the profession.

College Counsel referenced the Reasons for Sentence of the Honourable Madam Justice Ready found at page 5, Tab C (Exhibit 3) to demonstrate the psychological and emotional impact of the Member’s misconduct on the Student.

It was submitted that the allegations of kissing, touching the Student’s “bum” and comments made by the Member meet the definition in the Act of sexual abuse of a student.

Teachers are role models and must lead by example. With respect to subsection 1(15), College Counsel stated that the Member, by engaging in this conduct, did not set a good example.

College Counsel pointed out to the Committee that the Member’s criminal conviction is very relevant to his suitability to hold a Certificate of Qualification and Registration. In addition, College Counsel submitted that the Member served a jail sentence, is currently on probation with specific terms which may cause students to be put at or to remain at risk. College Counsel further submitted that the Member has expressed no remorse and still does not accept that this happened.

College Counsel emphasized that the Member’s conduct was a “gross breach of trust” and conduct unbecoming as he used his position as a teacher to “advance his relationship” with a struggling student with poor grades.

SUBMISSIONS ON FINDING – THE MEMBER

The Member submitted that the Student received extra time to complete the test because she was an [XXX] student and therefore, the teacher is required to provide accommodation. The Member stated that no finding of grooming was made by the trial judge. The Member submitted that he has been a teacher for twenty-five years, [XXX] a number of [XXX] and has never had any other allegations of misconduct made against him. The Member further submitted that there was a mutual respect between him and the students and that he helped students as much as he could, both in and out of the classroom. The Member concluded his submissions by stating that he received good evaluations from his administration.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College and the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Allester Gerard Ashley Macedo 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 also finds that the Member engaged in sexual abuse of a student of a nature defined in Sections 1 and 40(1.1) of the Ontario College of Teachers 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 as proof that an offence was committed by a person, where there is a finding of guilt and conviction in a Canadian court, provided that there is no evidence to the contrary and that no appeal has been granted. The Committee accepts as fact, as detailed in the court documents contained within Exhibit 3, that the Member was convicted of sexual assault and sexual exploitation of the Student. The conviction was entered on February 8, 2011. On July 22, 2011, a conditional stay was entered with respect to the charge of sexual assault.

The Member was subsequently sentenced to ninety (90) days in jail and two (2) years of probation with respect to the charge of sexual exploitation.

While the Member appealed the conviction and sentence, this appeal was unsuccessful.

The Committee finds that the Member’s criminal conviction for sexual assault and sexual exploitation constitutes 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). The Committee further finds that because of his inappropriate sexual contact with the Student, the Member engaged in sexual abuse of a student as defined in section 1 and subsection 40(1.1) of the Act.

SUBMISSIONS ON PENALTY - COLLEGE COUNSEL

College Counsel submitted that the only appropriate penalty in this case was immediate revocation and publication with the name of the Member. College Counsel posed a threshold question for the Committee to address when considering the appropriate penalty – Can the Member continue in the profession in light of the serious breach of trust?

College Counsel submitted that the Member should lose the privilege to teach given his conduct and the serious breach of trust. College Counsel stated that revocation would act as a specific deterrent to the Member as he continues to deny any wrongdoing and does not accept or acknowledge his actions.

With respect to general deterrence, revocation will send a message to the rest of the profession and the public that this conduct is not appropriate when interacting with students.

College Counsel submitted that the nature of the Member’s conduct falls at the lower end of the spectrum however “the line has still been crossed”. College Counsel further submitted that the aggravating factors that should be considered are that the conduct occurred in the classroom during a test, extra attention was given to the Student in an attempt to engage in a sexual relationship, all of which caused grave concern when the Member was sentenced in the criminal justice system.

College Counsel provided two cases for review by the Committee, which he submitted were very similar in terms of the nature of the conduct and the penalty sought by the College. In each of these cases, the penalty consisted of revocation and publication with name and the misconduct represented a serious breach of trust, which was in conflict with the duty of a teacher to protect students.

SUBMISSIONS ON PENALTY – THE MEMBER

The Member submitted that an appropriate penalty would be a reprimand for the accommodations given to the [XXX] student and publication without name. The Member stated that the actions are at the lower end of the scale and spoke to the impact of the judge’s decision on his life. The Member further stated that “remorse can only be felt if the acts were committed”. The Member submitted that his name should not be published as it would negatively impact him and his family. The Member further submitted that some of his former students, who are now teachers, would lose respect for him.

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) the Committee directs that there 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 DECISION

The Member was convicted of sexual assault and sexual exploitation of one of his students in criminal proceedings.

The Committee finds that the Member abused the authority and trust vested in him in his role as a teacher, without regard for the well-being of the Student. The Member’s behaviour caused the Student to feel scared, embarrassed and afraid (Exhibit 3, Tab E, page 11). In addition, the Student wrote in a victim impact statement that the incident “has changed the relationship that she feels she can have with teachers generally, especially male teachers” (Exhibit 3, Tab C, page 5).

The Committee considered the location of the incident to be an aggravating factor in this matter. The conduct occurred in the classroom while the Member was engaged in his duties as a teacher. The classroom is a learning environment in which students should, at all times, feel safe, secure and confident that their teacher will conduct themselves in an appropriate and professional manner. By his actions, the Member not only breached the teacher-student boundary, but he tainted the sanctity of the classroom.

Despite being found guilty beyond a reasonable doubt, the Member continues to deny any transgression, refuses to accept responsibility for his actions and to date, has not expressed remorse for his conduct or the effect that conduct has had on other parties, namely the Student. In the absence of any recognition of his wrongdoing or its consequences, the Committee is not confident that the behaviour would not be repeated or that student safety is protected. Without this confidence, the public interest is not being served.

Revocation of the Member’s Certificate of Qualification and Registration is the appropriate penalty in these circumstances.

Revocation serves as both a specific and general deterrent as removing the Member from the classroom protects students and restores public confidence in the profession.

The Committee finds that there are compelling reasons to publish the Member’s name. Publication with name reinforces for this Member, members of the profession and the public that this misconduct is unacceptable, will not be tolerated and will be dealt the most severe penalty available to the Committee.

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

Dated: October 22, 2013

______________________________ Wes Vickers, OCT, Chair

Chair, Discipline Panel ______________________________ Alexander (Sandy) Bass, OCT

Member, Discipline Panel

Pauline Smart

Member, Discipline Panel