Citation: Ontario College of Teachers v Speakman, 2013 ONOCT 84

Date: 2013-11-26

AND IN THE MATTER OF discipline proceedings against

Mark Alan H. Speakman, OCT, a member of the Ontario College of Teachers.

PANEL: Christine Bellini, OCT, Chair Monika Ferenczy, OCT

Pauline Smart

BETWEEN: )

) Caroline Zayid,

) McCarthy Tétrault LLP,

ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers,

) assisted by Daniela DeBartolo,

) Law Clerk

and - )

) Jerry Raso,

MARK ALAN H. SPEAKMAN ) Ontario English Catholic Teachers

(CERTIFICATE #219512) ) Association,

) for Mark Alan H. Speakman

) Julie Maciura,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel

) Heard: November 26, 2013

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 26, 2013 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated June 27, 2012 was served on Mark Alan H. Speakman, requesting attendance before the Discipline Committee of the Ontario College of Teachers on July 16, 2012, to set a date for a hearing, and specifying the charges. The hearing was subsequently set for November 26, 2013.

The Member, Mark Alan H. Speakman, was in attendance.

THE ALLEGATIONS

The allegations against Mark Alan H. Speakman in the Notice of Hearing, (Exhibit 1) dated June 27, 2012 are as follows:

IT IS ALLEGED that Mark Alan H. Speakman is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College Teachers Act (the “Act”)1996, 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);

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

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

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

(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).

At the hearing on November 26, 2013, College counsel sought to withdraw the allegations of professional misconduct in paragraphs (c) and (e) of 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 the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2). The Committee agrees that these allegations shall be withdrawn.

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

Mark Alan H. Speakman (the “Member”) was at all material times, a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed by the Durham Catholic District School Board (the “Board”) as a teacher.
On or about April 10, 2008, while the Member was a teacher at [XXX] School, he grabbed a Grade [XXX] male student by the shoulders and pushed him.
The Durham Children’s Aid Society verified that the Member inappropriately disciplined a student, namely the Grade [XXX] male student. Attached to Exhibit 2 at Tab “B” is a letter from the Durham Children’s Aid Society to the Member dated April 24, 2008.
The Member was then administratively transferred to another school, namely [XXX] School effective September 1, 2008 and was assigned to teach Grade [XXX]. Attached to Exhibit 2 at Tab “C” is a letter from the Superintendent of Education – Notre Dame Elementary Family of Schools to the Member dated June 24, 2008.
On or about March 10, 2009, while the Member was a teacher at [XXX] School, he grabbed a male student’s shoulders while in the stairwell. Attached to Exhibit 2 at Tab “D” is a letter from the Superintendent of Education – Denis O’Conner and Notre Dame Family of Schools to the Member dated April 20, 2009, cautioning the Member.
On or about June 2, 2009, while the Member was a teacher at [XXX] School, he yelled at a male student while he was doing a [XXX] experiment with regards to pulleys and gears, in a group, “You have to stay here”. He also grabbed the said student by the arm and pushed him against the blackboard.
Furthermore, on or about June 2, 2009, during the same [XXX] experiment, the Member pushed aside another male student by the arm with his hand.
The Durham Children’s Aid Society substantiated the allegations in that the Member was physically inappropriate with the student mentioned in paragraph 8 above. Attached to Exhibit 2 at Tab “E” is a letter from the Durham Children’s Aid Society to the Assistant Superintendent of Human Resources and Administrative Services dated August 24, 2009.
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 9 above (the “Admitted Facts”).

GUILTY PLEA

The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct, and admits the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5); 1(7-physical; pre-May 2008), 1(7.1), 1(15), 1(18-unprofessional), and 1(19).
By this document the Member states that:
he understands fully the nature of the allegations against him;
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;
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;
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;
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;
he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
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.

JOINT SUBMISSION ON PENALTY

The Ontario College of Teachers and the Member jointly submitted, through a Joint Submission on Penalty (Exhibit 3), that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:

directs that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
directs the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of one (1) month commencing on the date of the Order of the Discipline Committee relating to this matter and the fact of the suspension is to be recorded on the Register;
directs the Registrar to impose the following terms, conditions, and limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions, and limitations to be recorded on the Register until such time as they are fulfilled:

(a) the Member shall enrol in and successfully complete at his own expense, courses of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violation issues and classroom management;

(b) within thirty (30) days of completion of the courses outlined in (a) above, the Member shall provide to the Registrar a written certificate from each course provider stating that:

(i) he or she has reviewed a copy of the Agreed Statement of Facts, and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and

(ii) the Member has successfully completed the course.

directs 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 have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

SUBMISSIONS RE: PUBLICATION

Counsel for the College submitted that the nature of the conduct involved a number of repeated incidents over two years, involving physical force used on students. College Counsel also submitted that some aggravating factors to consider were: the Member had been cautioned by his Board; transferred to another school; warned about the use of physical force; reminded of the ethical and professional standards of practice for teachers; and instructed to complete a program on student discipline and classroom management. Despite all of these interventions, the Member’s behaviour continued.

College Counsel stated the mitigating factor is that the Member did plead guilty to the allegations of professional misconduct and therefore the students did not have to testify. Counsel indicated that publication with name acts as a specific deterrent and sends the Member a message that this sort of repeated behaviour will not be tolerated. Publication with name also serves as a general deterrence to other members of the profession that the College takes this type of misconduct seriously. Publication with name provides full transparency and serves and protects the public interest.

Counsel for the Member requested that the name of the Member not be published in Professionally Speaking/Pour parler profession as this was not warranted or needed and would be punitive only. Counsel for the Member stated that the agreed penalty of a one-month suspension, reprimand and course work, was sufficient. Counsel stated that this is a one-year blemish in a twenty-year history of teaching and there has not been an incident in the past four and one-half years. Counsel stated that the Member is 66 years old and now retired. Counsel stated that the general deterrent is met by publishing the summary of the decision and the penalty agreed to is sufficient for specific deterrence.

DECISION

Having considered the evidence and onus and standard of proof, and the submissions made by College Counsel and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Mark Alan H. Speakman committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7-physical: pre-May 2008), 1(7: post May 2008), 1(15), 1(18 -unprofessional) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 9 above (the “Admitted Facts”) of the Agreed Statement of Facts, and Guilty Plea (Exhibit 2). He acknowledged that the Admitted Facts constitute conduct which is professional misconduct and admitted the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7-physical: pre-May 2008), 1(7.1), 1(15), 1(18 -unprofessional) and 1(19). The Committee accepted the Member’s guilty plea and accepts that the facts in the Agreed Statement of Facts, and Guilty Plea amount to professional misconduct as pleaded to by the Member.

The Member used physical force on students on three occasions from April 10, 2008 to June 2, 2009. Durham Children’s Aid Society investigated and verified in two separate incidents that the Member inappropriately disciplined a student in his classroom. (Exhibit 2, Tabs B & E). The Member received two written cautions from the board about the use of physical force with students, one on June 24, 2008 and on April 20, 2009. (Exhibit 2, Tabs C & D). The Committee finds there is sufficient evidence to support the allegations of professional misconduct as set out in the Agreed Statement of Facts, and Guilty Plea.

PENALTY DECISION

The Committee makes the following order as to penalty:

The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of one (1) month commencing on November 26, 2013 and the fact of the suspension is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
The Committee directs that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand and the fact of the reprimand is to be recorded on the Register;
The Registrar is directed to impose the following terms, conditions, and limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions, and limitations to be recorded on the Register until such time as they are fulfilled:

(b) within thirty (30) days of completion of each course outlined in (a) above, the Member shall provide to the Registrar a written certificate from the course provider stating that:

(ii) the Member has successfully completed the course.

Pursuant to subsection 30 (5) paragraph 3 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 DECISION

The Committee finds the Member engaged in repeated acts of physical force of students despite repeated warnings and attempts at remediation by his Board. Aggressive contact with students is unacceptable, especially with younger children. The Committee agreed that the Joint Submission on Penalty was appropriate.

The reprimand and suspension serve as specific and general deterrents. The one month suspension sends a message to the profession and to the public that this type of misconduct warrants serious consequences. The reprimand allows the profession to express its concerns to the Member about his misconduct. The courses of instruction in appropriate boundaries and boundary violation issues and classroom management will serve to rehabilitate the Member.

Protection of the public interest is reflected in the suspension, reprimand and course work. This penalty sends a strong message to the profession and to the public about the consequences of such professional misconduct.

The Committee directed that there be publication in summary form, with the name of the Member in the official publication of the College, Professionally Speaking/Pour parler profession. In reviewing the facts of this case, the Committee found that the nature of misconduct and the fact that the Member continued to use physical force with students despite repeated warnings, warranted publication of the Member’s name. The Committee determined that the misconduct outweighed the mitigating circumstances presented by Counsel for the Member not to publish the Member’s name. In this case, publication with name provides the transparency and openness expected by the public, acts as a specific deterrent to the Member and provides general deterrence to the profession.

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

Date: November 26, 2013

Christine Bellini, OCT

Chair, Discipline Panel

Monika Ferenczy, OCT

Member, Discipline Panel

Pauline Smart

Member, Discipline Panel