Ontario College of Teachers v O’Keefe, 2013 ONOCT 73

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v O’Keefe, 2013 ONOCT 73

Date: 2013-08-27

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

Kenneth John J. O’Keefe, a member of the Ontario College of Teachers.

PANEL: Louis Sloan, OCT, Chair Alexander (Sandy) Bass, OCT

Mel Greif

BETWEEN: ) ) Larissa Moscu,

ONTARIO COLLEGE OF TEACHERS ) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

) assisted by Daniela De Bartolo,

) Law Clerk

• and – )

KENNETH JOHN J. O’KEEFE ) Andrew Bradie,

(CERTIFICATE #355795) ) for Kenneth John J. O’Keefe

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: August 27, 2013

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on August 27, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated May 30, 2013 was served on Kenneth John J. O’Keefe, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on June 21, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for August 27, 2013.

Kenneth John J. O’Keefe was not in attendance.

THE ALLEGATIONS

The allegations against Kenneth John J. O’Keefe (the “Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that Kenneth John J. O’Keefe is guilty of professional misconduct as defined in sections 30(2) and 40(1.1) of the Ontario College of Teachers Act (the “Act”) in that:

a) he failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to section 13 of the Regulation made under the Teaching Profession Act made pursuant to section 12 of the Teaching Profession Act, R.S.O. 1970, chapter 456, as amended (the “TPA Regulation”);

b) he failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;

c) he failed to show consistent justice and consideration in all his relations with pupils contrary to subsection 14(d) of the TPA Regulation;

d) he failed to comply with subsection 22(1)(c) of the Schools Administration Act, R.S.O. 1960, Ch. 361 and amendments thereto;

e) he failed to comply with subsection 229 (1)(c) of the Education Act 1974 and amendments thereto;

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

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, subsections 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. Kenneth John J. O’Keefe (the “Member”) is a member of the Ontario College of Teachers.

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

3. At all material times, the Student was a [XXX] year old male student at the School.

4. From and including September 1, 1974 to December 1, 1974, the Member:

a) had inappropriate physical contact with the Student;

b) had sexual contact with the Student.

5. On or about September 6, 2012, the Member was found guilty of the following charge:

a) that between the 1^st day of September in the year 1974 and the 1^st day of December in the year 1974 at the City of Ottawa in the East Region being a male person, did indecently assault the Student, a male person, contrary to section 156 of the Criminal Code (Canada).

6. On or about September 6, 2012, the Member was given a conditional sentence of nine (9) months, six (6) months of which are house arrest.

7. The Member has not appealed the conviction and/or sentence.

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides as follows:

AGREED STATEMENT OF FACTS

1. Kenneth John J. O’Keefe (the “Member”) was at all material times, a member of the Ontario College of Teachers. Attached to Exhibit 2, Tab A is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

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

3. At all material times, the Student was a [XXX] year old male student at the School.

4. From and including September 1, 1974 to December 1, 1974, the Member was the Student’s [XXX] teacher in Grade [XXX] and belonged and currently still belongs to the order of the Basilian Fathers, which is an international order of Catholic priests.

5. During the material times, the Student had gotten into an argument with his parents that resulted in him speaking to the Member about it. The Member always told his students that he was always available if they needed someone to talk to.

6. The Member invited the Student to stay overnight at his home after the Student told the Member about the argument he had with his parents. When the Student arrived at the Member’s home, the Student noticed there was only one bed and the Student told the Member that he would sleep on the floor.

7. The Member told the Student that he didn’t need to sleep on the floor and that they could share the bed. The Student got into bed, leaving his underwear on. The Student fell asleep on his side with his back to the centre of the bed.

8. The Student was awoken during the night by the Member, who was lying beside him, naked and pushed his erect penis between the Student’s buttocks and through the Student’s underwear. The Member also had his hand inside the Student’s underwear touching the Student’s penis.

9. On or about September 6, 2012, the Member was found guilty that between the 1^st day of September in the year 1974 and the 1^st day of December in the year 1974 at the City of Ottawa in the East Region being a male person, did indecently assault the Student, a male person, contrary to section 156 of the Criminal Code (Canada).

10. On or about September 6, 2012, the Member was given s conditional sentence of nine (9) months, six (6) months of which are house arrest.

11. Attached to Exhibit 2, Tab B is a certified copy of the Superior Court of Justice Indictment, dated November 1, 2011.

12. A certified copy of the Conditional Sentence Order dated September 6, 2012, is attached to Exhibit 2, Tab C.

13. A certified copy of the Prohibition Order dated September 6, 2012, is attached to Exhibit 2, Tab D.

14. A certified copy of the Fine Order/Victim Surcharge dated September 6, 2012, is attached to Exhibit 2, Tab E.

15. A copy of the Transcript of Proceedings made on September 6, 2012 before Madam Justice Lynn D. Ratushny, is attached to Exhibit 2, Tab F.

16. By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in paragraphs 1 to 15 above (the “Admitted Facts”).

GUILTY PLEA

17. The Member hereby acknowledges that the Admitted Facts referred to in paragraphs 6 to 10 above, constitute conduct which is professional misconduct, and admits the allegations of professional misconduct against him, being more particularly:

a) he failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to section 13 of the Regulation made under the Teaching Profession Act made pursuant to section 12 of the Teaching Profession Act, R.S.O. 1970, chapter 456, as amended (the “TPA Regulation”);

b) he failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;

c) he failed to show consistent justice and consideration in all his relations with pupils contrary to subsection 14(d) of the TPA Regulation;

d) he failed to comply with subsection 22(1)(c) of the Schools Administration Act, R.S.O. 1960, Ch. 361 and amendments thereto;

e) he failed to comply with subsection 229(1)(c) of the Education Act 1974 and amendments thereto;

f) he breached Ontario Regulation 437/97 subsections 1(7.3); 1(16); 1(17); 1(18) and 1(19) and the Member also acknowledges that he engaged in sexual abuse of a student or students of a nature defined in Sections 1 and 40(1.1) of the Act.

18. By this document, the Member states that:

a) he understands fully the nature of the allegations against him;

b) he understands that by signing this document, he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

d) he understands 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 understands 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 understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

19. In light of the admitted facts and circumstances and plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

PUBLICATION BAN

A non-publication order was issued under subsection 486.4 of the Criminal Code (Canada), in the proceedings in the Superior Court of Justice. The Committee is therefore required to uphold this publication ban imposed in the matter of Her Majesty The Queen v. Kenneth John J. O’Keefe 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.

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 Kenneth John J. O’Keefe committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(7.3), 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 Act.

Further, the Committee finds that the Member:

a) failed to strive at all times to achieve and maintain the highest degree of professional competence and to uphold the honour, dignity and ethical standards of the teaching profession, contrary to section 13 of the Regulation made under the Teaching Profession Act made pursuant to section 12 of the Teaching Profession Act, R.S.O. 1970, chapter 456, as amended (the “TPA Regulation”);

b) failed to concern himself with the welfare of his pupils while they were under his care, contrary to subsection 14(f) of the TPA Regulation;

c) failed to show consistent justice and consideration in all his relations with pupils contrary to subsection 14(d) of the TPA Regulation;

d) failed to comply with subsection 22(1)(c) of the Schools Administration Act, R.S.O. 1960, Ch. 361 and amendments thereto; and

e) failed to comply with subsection 229(1)(c) of the Education Act 1974 and amendments thereto.

REASONS FOR DECISION

The Committee accepts the Member’s admission of the truth of the facts and exhibits referred to in paragraphs 1 to 15 above (the “Admitted Facts”). The Member acknowledged that the Admitted Facts referred to in paragraphs 6 to 10 above, constitute conduct which is professional misconduct, and pleaded guilty to the allegations of professional misconduct against him, being more particularly breaches of the Schools Administration Act, the Education Act, sections 13, 14(d) and 14(f) of the Regulation made under the Teaching Profession Act, and Ontario Regulation 437/97, subsections 1(7.3), 1(16), 1(17), 1(18) and 1(19). The Member also acknowledged that he engaged in sexual abuse of a student of a nature defined in Sections 1 and 40(1.1) of the Act.

The Committee accepted the Member’s guilty plea and accepts that the facts in the Agreed Statement of Facts and Guilty Plea (Exhibit 2) amount to professional misconduct as pleaded to by the Member.

While the Member was a teacher at the School, he had inappropriate physical and sexual contact, which culminated in a sexual assault, on a [XXX] year old male student in his care. This sexual assault occurred in the Member’s apartment while the Student was visiting him after having had a conflict with his parents. The Member offered the Student to stay overnight at his home. There was only one bed and the Member encouraged the Student to share the bed with him even though the Student was prepared to sleep on the floor. Sometime during that evening, the Student was awakened by the Member, who was naked and was placing his hand inside the Student’s underwear, touching the Student’s penis. At the same time, the Member was pushing his own penis between the Student’s buttocks through the Student’s underwear.

On September 6, 2012, the Member was convicted of the indecent assault of the Student, contrary to section 156 of the Criminal Code (Canada). For this offence, the Member was sentenced to a nine (9) month conditional sentence order, which included six (6) months of house arrest. In addition, the Court ordered that the Member pay a fine of $100.00 and be prohibited pursuant to section 161 the Criminal Code (Canada), for life, from being in the presence of persons under the age of sixteen, seeking employment or volunteer opportunities that involve being in a position of trust or authority towards persons under the age of sixteen years, or using a computer system as a means of communicating with persons under the age of sixteen years.

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.

The Committee finds that by his actions and his conviction of indecent assault, the Member committed acts of professional misconduct as alleged.

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty document (Exhibit 4), College Counsel and Counsel for the Member jointly submitted that the appropriate penalty in this matter would be that the Committee direct the Registrar to revoke the Certificate of Qualification and Registration of the Member immediately and that there be publication of the findings and Order of the Committee in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession. The parties had not agreed on whether or not the Member’s name should be published and made submissions on that issue.

SUBMISSIONS ON PUBLICATION-COUNSEL FOR THE COLLEGE

Counsel for the College acknowledged that given the Member’s age and retirement that there was little chance that the Member would return to teaching and therefore there was no need to consider, in this specific case, the issue of specific deterrence. However, Counsel for the College did speak to the matter of general deterrence. This issue is a continuing one for the matter of the public trust and for that matter, the profession itself and therefore, a statement of general deterrence must be made. In this regard, Counsel for the College asked that there be full publication, with name in order to achieve the deterrence and transparency so required by the maintenance of the public trust. Sexual assault on a student is considered to be one of the most severe types of professional misconduct and the Committee should communicate strongly that this behaviour will not be tolerated.

Counsel for the College presented two recent cases where publication with name occurred. In both cases, the view of Counsel for the College was that since serious sexual misconduct had occurred that publication with name was necessary.

SUBMISSIONS ON PUBLICATION-MEMBER’S COUNSEL

Member’s Counsel provided no examples of prior decisions made by the Discipline Committee, but did offer a mitigating argument. Member’s Counsel provided an argument whereby he maintained that one of the example cases provided by College Counsel was for a much more egregious case which warranted an aggressive penalty and therefore, perhaps publication with name was appropriate in that case. In the matter at hand, the Member’s behaviour could be deemed to be of a lesser nature and should therefore be considered in determining a penalty. At the same time, the Member pleaded guilty, cooperated fully and was remorseful. Member’s Counsel argued that the penalty imposed could be moderated and that publication without name would reflect his cooperation in facilitating the legal proceedings against him. Further considerations were brought forward for the Committee. The Member is now eighty-three and the incident occurred thirty-nine years ago. The Member has also been sober for many years.

PENALTY

The Committee makes the following order as to penalty:

1. The Committee directs the Registrar to revoke the Certificate of Qualification of the Member, which Certificate the Member is to immediately surrender to the Registrar; and

2. 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

Instances of sexual misconduct require significant penalties. In this case, the Member pleaded guilty and was found guilty in criminal proceedings before the Superior Court of Justice. The Committee was able to rely on the record of those proceedings to fully understand the magnitude of the Member’s transgression. The Committee took into account any mitigating factors that may have been part of the Member’s cooperation in those proceedings. Nevertheless, the behaviour still warrants revocation. In the case of such sexual misconduct, the Committee finds that it is appropriate to revoke the Member’s Certificate of Qualification and Registration.

The Committee considered the issue of publication with or without name. The Committee was of the opinion that in this particular instance, publication with name is warranted and appropriate. It considered the matter of deterrence. Specific deterrence was no longer an issue because of the Member’s current retired status, age and the unlikelihood of his ever returning to teach. General deterrence remains an important consideration. The profession must be fully informed as to the consequences of the behaviour being considered in this matter. Teachers must know that they are held to a very high standard and that failure to adhere to the standard will result in the College’s most severe penalty.

Publication with name ensures the achievement of general deterrence, transparency and the maintenance of the public trust.

Dated: August 27, 2013

______________________________ Louis Sloan, OCT

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

Mel Greif

Member, Discipline Panel