Ontario College of Teachers v Careen, 2014 ONOCT 21

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Careen, 2014 ONOCT 21

Date: 2014-05-30

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

Martin Careen, a member of the Ontario College of Teachers.

PANEL: Alexander (Sandy) Bass, OCT, Chair Robert Gagné

Pauline Smart

BETWEEN: ) ) Ava Arbuck,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Bev Hodsdon,

) Law Clerk

• and – )

) Martin Careen was not present,

) nor was his counsel, Joe Doyle,

) present

MARTIN CAREEN )

(CERTIFICATE #291611) )

) Rebecca Durcan,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: May 30, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 30, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1), dated December 15, 2011 was served on Martin Careen, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on January 11, 2012 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for May 30, 2014.

The Member was not in attendance but was represented by counsel in these proceedings.

THE ALLEGATIONS

The allegations against Martin Careen (the “Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that Martin Careen is guilty of professional misconduct as defined in subsections 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) 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;

(d) he failed to comply with the Act and 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);

(e) 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);

(f) he contravened a law, the contravention of which has caused or may cause a student who is under the Member’s professional supervision to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(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).

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:

PUBLICATION BAN

A non-publication order (Exhibit 2, Tab B) was issued under subsection 486.4(1) of the Criminal Code (Canada), in the proceedings in the Supreme Court of British Columbia. The Committee is therefore required to uphold this publication ban imposed in the matter of Regina v. Martin Careen in the Supreme Court of British Columbia. There shall be no publication of any information that might tend to identify the victim involved in this matter.

AGREED STATEMENT OF FACTS

1. Martin Careen (the “Member”) is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. The Member also held a Professional Certificate issued by the British Columbia College of Teachers which was cancelled on January 7, 2012.

3. At all material times, the Member was employed by [XXX] (the “Board”) as a Grade [XXX] teacher at [XXX] School (the “School”), a [XXX] School in [XXX], British Columbia.

4. At all material times, Student #1 was a Grade [XXX] female student [XXX].

5. Student #1 had had access to the Member’s mobile telephone number since October or November 2008. Student #1 received this number when she was communicating with the Member about missed assignments.

6. Student #1 engaged in regular text messaging with the Member thereafter.

7. On or about April 14, 2009, Student #1 reported to the [XXX] Police in British Columbia that she had received a number of sexually explicit text messages from the Member.

8. On July 6, 2009, the Member was charged with sexual exploitation contrary to s. 153(1)(b) of the Criminal Code of Canada and with luring contrary to s. 172.1(1)(a) of the Criminal Code of Canada. The charge of luring was subsequently stayed by the Crown.

9. On July 13, 2011, the Member was found guilty of sexual exploitation, contrary to section 153(1)(b) of the Criminal Code of Canada following a trial before the Honourable Mr. Justice Terence Schultes, in New Westminster, British Columbia. Attached hereto and marked as Exhibit “B” is the transcript of the Oral Reasons for Judgment of the Honourable Mr. Justice Schultes, including the findings of the Court.

10. In his Oral Reasons for Judgement, the Honourable Mr. Justice Schultes noted with respect to the text messages:

“I think the language used by Mr. Careen leads to the inescapable inference that it was intended to incite exactly what it did produce: a state of sexual interest on the part of the young person who received it and an eagerness on her part to act on what had been discussed…I am satisfied beyond a reasonable doubt that Mr. Careen at the time of these communications intended that [Student #1] would receive his words as an invitation, incitement or counselling to engage in sexual activity with him.”

11. On May 16, 2012, the Member was sentenced to a sixty (60) day jail sentence to be served intermittently at three (3) week intervals. Attached hereto and marked as Exhibit “C” is a copy of the transcript of the Oral Reasons for Sentencing of the Honourable Mr. Justice Schultes.

12. Attached hereto and marked as Exhibits “D”, “E”, “F”, “G” and “H” respectively are the certified copies of the Information, Supreme Court of British Columbia Record of Proceedings and Endorsement of Indictment and Publication Ban, Variation of Order – Adult, Warrant of Committal Upon Conviction, Notice of Victim Surcharge and Probation Order.

13. On June 13, 2013, the Member appealed his conviction on the charge of sexual exploitation.

14. On December 12, 2013, the Court of Appeal for British Columbia dismissed this appeal. Attached hereto and marked as Exhibit “I” is a copy of the Court of Appeal for British Columbia decision.

15. The Member entered into a Consent Resolution Agreement with the British Columbia Commission for Teacher Regulation dated March 27, 2014. Attached hereto and marked as Exhibit “J” is a copy of the Consent Resolution Agreement.

GUILTY PLEA

16. By this document, the Member admits the facts and exhibits referred to in paragraphs above (the “Admitted Facts”).

17. The Member hereby acknowledges that the Admitted Facts referred to above constitute professional misconduct, being more particularly a breach of Ontario Regulation 437/97 subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(17), 1(18) and 1(19).

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 his counsel and counsel for the College 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 the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

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 Martin Careen committed acts of professional misconduct as alleged, 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).

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 constitute conduct which is professional misconduct, and pleaded guilty to the allegations of professional misconduct against him, 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 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.

On July 13, 2011, following a trial, the Member was found guilty of sexual exploitation of Student #1, contrary to section 153(1)(b) of the Criminal Code of Canada. On May 6, 2012 the Member was sentenced to a sixty (60) day jail sentence to be served intermittently at three (3) week intervals. On June 13, 2013, the Member appealed his conviction on the charge of sexual exploitation and on December 12, 2013, the Court of Appeal for British Columbia dismissed this appeal.

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’s actions and his conviction of sexual exploitation of a student constitute acts of professional misconduct as alleged.

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty document (Exhibit 4), College Counsel and the Member jointly submitted that the appropriate penalty to be imposed by the Committee in this matter would be that the Registrar of the Ontario College of Teachers be directed to revoke the Certificate and Qualification and Registration of the Member, with publication of the findings and Order of the Committee, with the name of the Member, in summary in the official publication of the College, Professionally Speaking/Pour parler profession.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Registrar of the Ontario College of Teachers is directed to revoke the Certificate of Qualification and Registration of the Member; and

2. There shall 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

This Member was found guilty of one count of sexual exploitation of Student #1, a Grade [XXX] female student who was in the Member’s class. This conviction was the result of the Member sending sexually explicit text messages to Student #1. In his Oral Reasons for Judgment, the Honourable Mr. Justice Schultes noted with respect to the text messages: “…I am satisfied beyond a reasonable doubt that Mr. Careen at the time of these communications intended that [Student #1] would receive his words as an invitation, incitement or counselling to engage in sexual activity with him.”

Such behaviour represents an egregious breach of trust between a teacher and a student under his care. The Member has therefore forfeited the privilege of holding a teaching certificate and being a member of the profession.

Revocation serves as both a specific and general deterrent, protects children and restores public confidence in the profession. Publication with name serves the public interest by informing the community that the profession acts decisively when matters of this nature are brought to its attention. Publication with name also serves to inform other members of the profession that the College will denounce such behaviour with the most rigorous penalty.

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

Dated: May 30, 2014

______________________________ Alexander (Sandy) Bass, OCT

Chair, Discipline Panel ______________________________ Robert Gagné Member, Discipline Panel

Pauline Smart

Member, Discipline Panel