Ontario College of Teachers v Rouse, 2013 ONOCT 79

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Rouse, 2013 ONOCT 79

Date: 2013-01-31

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

Dustin Phillip Rouse, OCT, a member of the Ontario College of

Teachers.

PANEL: John Tucker, Chair Stefanie Achkewich, OCT

Vicki Shannon, OCT

BETWEEN: ) ) Eli Mogil,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,

) Law Clerk )

• and – )

) Dustin Phillip Rouse on his own

) behalf, in person

DUSTIN PHILLIP ROUSE )

(CERTIFICATE #504142) )

) Marc Spector,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: January 17, 2013

DECISION, REASONS FOR DECISION, AND ORDERS

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

A Notice of Hearing (Exhibit 1), dated April 12, 2012 was served on Dustin Phillip Rouse, requesting attendance before the Discipline Committee of the Ontario College of Teachers on May 7, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for January 17, 2013.

THE ALLEGATIONS

The allegations against Dustin Phillip Rouse (the “Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that Dustin Phillip Rouse 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 verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

c) he abused a student psychologically or emotionally, contrary to Ontario Regulation 497/97, subsection 1(7.2);

d) 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;

e) 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);

f) 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);

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. Dustin Phillip Rouse (the “Member”) is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Grand Erie District School Board (the “Board”) and was an elementary occasional teacher.

3. In and around November 2007, the Member was a teacher at an elementary school of the Board (the “School”).

4. At all material times, the Student, a female, was a student at the School and at one of the Board’s high schools.

5. From November 2007 to May 2009, the Member:

a) communicated in a sexually explicit and inappropriate manner via the Internet with the Student;

b) during these communications, encouraged or invited the Student to view his penis and genitals, perform fellatio, have sexual intercourse with him and discussed topics such as orgasm, masturbation, sex toys bondage and/or sadomasochistic fantasies with the Student;

c) during these communications, attempted to arrange to meet with the Student for the purpose of having a personal and/ or sexual relationship with the Student.

6. On or about June 20, 2009, the Member was charged with Internet luring of a minor by the Brant County Ontario Provincial Police.

7. On or about August 31, 2009, the Member’s employment with the Board was terminated.

8. On or about June 8, 2011, the Member pleaded guilty to the charge of luring a child via computer for sexual exploitation and for the purpose of facilitating the commission of an offence, to wit, invitation to sexual touching contrary to sections 152 and 172.1 of the Criminal Code of Canada.

9. On July 11, 2011, the Member was sentenced for the offence referred to in paragraph 8 above, to a twelve (12) month period of conditional sentence, including house arrest for six (6) months, and a three (3) year probationary period.

MEMBER’S PLEA

The Member pleaded guilty to the allegations set out in the Notice of Hearing.

THE EVIDENCE

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

Brief of Court Documents – Her Majesty The Queen v. Dustin Phillip Rouse, OCT (Exhibit 2);

Excerpts of Exhibits (Exhibit 3);

The Brief of Court Documents (Exhibit 2) with respect to the criminal proceedings against the Member submitted into evidence consisted of:

1. Certified Copy of Ontario Court of Justice Information and Appearances, Recognizance of Bail (Found at Tab A);

2. Certified Copy of Conditional Sentence dated July 11, 2011 (Found at Tab B);

3. Certified Copy of Probation Order dated July 11, 2011 (Found at Tab C);

4. Certified Copy of Prohibition Order dated July 11, 2011 (Found at Tab D);

5. Transcript of Proceedings at Guilty Plea before the Honourable Justice M.B. Zivolak at Brantford, Ontario dated June 8, 2011 (Found at Tab E); and

6. Transcript of Reasons for Sentence before Honourable Justice M.B. Zivolak at Brantford, Ontario dated July 11, 2011 (Found at Tab F).

The Member entered into evidence the following document:

1. A folder containing a variety of individual documents (Exhibit 4).

The evidence presented in the Brief of Court Documents (Exhibit 2) confirmed that on June 8, 2011, the Member pleaded guilty to the charge of luring a child via computer for sexual exploitation and for the purpose of facilitating the commission of an offence, to wit, invitation to sexual touching, contrary to Sections 152 and 172.1 of the Criminal Code of Canada.

On July 11, 2011, the Member was sentenced for the above mentioned offence to a twelve (12) month conditional sentence, including house arrest for six (6) months, and a three (3) year probationary period.

PUBLICATION BAN

A non-publication order was issued under subsection 486.4(1) 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. Dustin Rouse by the Ontario 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, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Dustin Phillip Rouse committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1 (7.2), 1(7.3), 1(15), 1(16), 1(18) and 1(19).

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 2, that the Member was convicted of luring a child via computer for sexual exploitation and for the purpose of facilitating the commission of an offence, to wit, invitation to sexual touching contrary to sections 152 and 172.1 of the Criminal Code of Canada. The conviction was entered on July 11, 2011.

On July 11, 2011, the Member was sentenced for the offence referred to above, to a twelve (12) month conditional sentence, including house arrest for six (6) months, and a three (3) year probationary period.

SUBMISSIONS ON PENALTY

Counsel for the College submitted that the penalty should include immediate revocation of the Member’s Certificate of Qualification and Registration, and publication with name was the appropriate penalty for very serious criminal sexual activity. This penalty will serve as a specific deterrent to the Member to not engage in any future conduct of this nature. As a general deterrent, the penalty informs the profession and the public that this behaviour is not condoned; rather is condemned, and will result in revocation of certification, as well as full publication with the Member’s name.

Counsel for the College submitted two cases for review by the Committee, which demonstrated a similar degree of penalty application for similar misconduct. Counsel concluded that the most serious case must attract the most serious of consequences -revocation and publication with name.

The Member referred the Committee to Exhibit 2 (Tab E) and proceeded to read his statement of position to the Court in Proceedings at Guilty Plea, June 8, 2011. His statement of position outlined his desire to teach, past exemplary behaviour, described his interpretation of events, and offered an apology for his serious error in judgement. The Member further submitted that he has completed six months of treatment which determined that he does not pose a threat to society and is not a pedophile.

The Member submitted that the publication ban covering contents of the proceedings at Proceedings at Guilty Plea, June 8, 2011 prohibited publication of the Member’s name as it covers any, all or some of the material. He then presented examples of cases where the name of the Member had been withheld from publication.

The Member concluded by asking for an eighteen (18) month suspension of the Member’s Certificate of Qualification and Registration and publication of the findings and Order of the Committee without the name of the Member.

PENALTY DECISION

The Committee makes the following order as to penalty:

a) the Registrar of the Ontario College of Teachers is directed to immediately 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 pleaded guilty and was convicted of the offence commonly referred to as internet luring, and that between November 2007 and May 2009, he did use a computer to communicate with a person under the age of sixteen (16) for the purpose of facilitating the commission of an offence, to wit, invitation to sexual touching contrary to sections 152 and 172.1 (1) (b) of the Criminal Code.

Following several attempts by a smitten student to engage the Member in conversation, he eventually acquiesced, and provided his email address to her. There ensued several months of email communication and chatting online which became increasingly inappropriate in nature and dealt with sexual content.

During these communications, the Member encouraged or invited the student to view his penis and genitals, perform fellatio, have sexual intercourse with him and discussed topics such as orgasm, masturbation, sex toys, bondage and/or sadomasochistic fantasies with the student. Two meetings were arranged with the student for the purpose of having a personal and/or sexual relationship with the student, but did not ultimately occur.

The Committee determined that no member of the profession should be engaged in this type of luring and sexually explicit behaviour with a student. It is particularly unacceptable that the Member was a teacher, someone who is entrusted with the protection of children. Children are vulnerable members of society and must be safeguarded against predators who use the internet to lure them into a situation where they can be sexually exploited and abused. The Committee found the Member’s offences to be very disturbing.

The Member’s actions were criminal and warrant revocation of the Member’s Certificate of Qualification and Registration.

The Committee recognizes that the College discipline process is separate and apart from the criminal process and that the College has a practice of including the name of the Member in its decision and summary even when publication bans are put in place (with the proviso that publication would not identify the student). The Committee recognizes that the focus of s.486.4 of the Criminal Code (Canada) is to protect the complainant (the student). There has been no evidence presented to the Committee that publication of the Member’s name would lead to identification of the student or that harm would occur as a result of publication.

The Committee understands that the publication ban does extend to the College, but the scope of the ban does not include the Member’s name. The Committee determines that it can publish the name of the Member without breaching the publication ban.

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 the serious nature of the Member’s misconduct and the consequences of such behavior. Publication in this case, acts as both a specific and general deterrent and informs the profession and the public that such conduct will not be tolerated and will result in the harshest of penalties.

Dated: January 31, 2013

______________________________ John Tucker

Chair, Discipline Panel ______________________________ Stefanie Achkewich, OCT

Member, Discipline Panel

Vicki Shannon, OCT

Member, Discipline Panel