Ontario College of Teachers v Congi, 2014 ONOCT 24

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Congi, 2014 ONOCT 24

Date: 2014-02-05

IN THE MATTER OF the Ontario College of Teachers Act (the “Act”) and Ontario Regulation 437/97

AND IN THE MATTER OF a discipline proceeding against Salvatore (Sam) Congi, OCT, a member of the Ontario College of Teachers.

COMMITTEE: Jean-Luc Bernard, OCT, Chair

Marie-Louise Chartrand

Louis Sloan, OCT

BETWEEN: )

) Christine Lonsdale,

) McCarthy Tétrault LLP,

ONTARIO COLLEGE OF TEACHERS ) for the Ontario College of Teachers,

) assisted by Annie Lacroix,

) Law Clerk

• and- )

) Danielle Leon Foun Lin,

SALVATORE (SAM) CONGI ) Nelligan O’Brien Payne,

(CERTIFICATE #179960) ) for Salvatore (Sam) Congi

) Paul Marshall,

) Emond Harnden LLP,

) Independent Legal Counsel ) ) Heard: September 18, 23 and

) 24, 2013

DECISION AND REASONS FOR DECISION

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (the “College”) on September 18, 2013 at Toronto.

A Notice of Hearing, dated January 13, 2012, was served on Salvatore Congi (“the Member”) requesting his attendance before the College’s Discipline Committee on February 1, 2012, to set a date for a hearing. The hearing was subsequently set for September 18, 2013 and continued on September 23 and 24, 2013.

The Member was in attendance at the hearing.

ALLEGATIONS

The allegations against the Member in the Notice of Hearing (Exhibit 1), dated January 13, 2012, are as follows:

IT IS ALLEGED that the Member is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of 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 physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

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

d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3), or abused a student or students sexually as described in section 1 of the Act;

e) he failed to comply with the Act or the regulations, or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

f) he failed to comply with the Education Act or the regulations made thereunder, 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 has caused students under the Member’s professional supervision 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. Salvatore (Sam) Congi is a member of the College.

2. At all material times, the Member was employed by the Conseil scolaire catholique du Nouvel-Ontario as a teacher.

3. During the 2008-2009 school year, the Member taught at [XXX] in Sudbury [sic, [XXX]].

4. During the 2008-2009 school year, the Member engaged in unprofessional conduct, in that:

(a) he allegedly undertook to have an inappropriate personal relationship with Student “A” and allegedly exchanged inappropriate e-mails with her; and

(b) he allegedly engaged in conduct of a sexual nature towards Student “A”, a [XXX] year old student, by having sexual contact with her and kissing her on several occasions, both at school and elsewhere.

5. On November 30, 2008, the Member allegedly went to the school, contrary to a condition of the agreement he made before a justice of the peace and, in so doing, allegedly contravened a law that is relevant to his suitability to hold a Certificate of Qualification and Registration, a contravention which may have caused a student under his supervision to be put at risk.

6. On September 23, 2010, the Member was found guilty of breaking a recognizance of bail made before a justice of the peace (Criminal Code, section 145(5.1)) and was ordered to pay a fine of $750.

WITHDRAWAL OF ALLEGATION 6

When the hearing began, Counsel for the College requested that the allegation set out in paragraph 6 of the Notice of Hearing be withdrawn. The request was granted.

ORDER OF NON-PUBLICATION

Counsel for the College also requested an order of non-publication as to the name of Student “A”. Counsel for the Member had no objection to the motion. The Committee therefore ordered the non-publication of Student “A”’s name.

MEMBER’S PLEA

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

SUMMARY

During the 2008-2009 school year, the Member allegedly engaged in unprofessional conduct.

At all material times, the Member taught [XXX] and [XXX] for the Conseil scolaire catholique du Nouvel-Ontario.

He apparently engaged in an inappropriate personal relationship and conduct of a sexual nature towards Student “A”, a [XXX]-year old student, by having sexual contact with her and kissing her on several occasions, both at school and elsewhere.

The first task before the Committee is to examine the allegations against the Member using the standard of proof of the balance of probabilities, and to dismiss or uphold the allegations in whole or in part on the basis of the proven facts. If the Committee finds that the Member in his capacity as a teacher contravened any of the allegations in the Notice of Hearing, he will be found guilty of professional misconduct.

SUBMISSIONS BY THE PARTIES

Counsel for the College submitted comments beginning with the allegation of an inappropriate sexual relationship between the Member and Student “A”. She informed the members of the Committee that there would be three witnesses and confirmed that evidence from the criminal trial would be produced.

Counsel for the Member did not object to the non-publication of Student “A”’s name. She informed the members of the Committee that she would examine two witnesses in addition to the Member. She maintained that the Member’s account was the most consistent in support of the evidence.

EVIDENCE: WITNESSES AND EXHIBITS

Witnesses

At the hearing, the College called three witnesses: Student “A”, [XXX]. and Constable Jonathan Dahl. They testified as to their versions of the interactions with the Member.

Counsel for the Member called two witnesses, [XXX]. and [XXX]. The Member also testified at the hearing.

[XXX]’s Testimony

When she came home, Student “A”’s mother confirmed that her daughter’s state of health was fragile. Her daughter vomited when she came home after her visit to the police station. During the examination in chief, [XXX]., Student “A”’s mother, confirmed that she heard Student “A” answer yes to a question asked by Student “A”’s father; that is, had she had a sexual relationship with the Member. Nevertheless, on the night of November 28/29, 2008, after her examination at the police station following Constable Dahl’s involvement, the student denied having had a relationship.

On the morning of November 29, the parents accompanied Student “A” to the [XXX] police station for further questioning. She stated that she now gave the true version of the facts and that her responses during the initial session of questioning were untrue.

In cross-examination, [XXX] confirmed these facts.

Student “A”’s Testimony

Student “A” is now studying Social Science at Western University. She testified as an adult concerning events which occurred five years ago when she was [XXX] years old. Student “A” was the first witness of the day; she opted to testify in English.

Counsel for the College began the examination in chief by referring to the knowledge she had acquired during her university studies, specifically with respect to the term “grooming.” She admitted that she was very familiar with the term “grooming” from her university studies. She confirmed that she had testified at the Member’s trial. Counsel for the College questioned her concerning her state of mind during this period. Student “A” testified, “I believe that I was in a state of denial and I was still in shock, definitely suffering from post-traumatic stress disorder. I was in a very deep clinical depression.”

Student “A” confirmed that in Grade [XXX], she was a student at [XXX] and the Member was her teacher for [XXX] and [XXX]. In Grade [XXX], the Member taught her another [XXX] course. The Member did not teach her in Grade [XXX], that is, in 2008.

Student “A” stated that the atmosphere at home was strict and structured. She was not allowed to challenge parental authority.

Student “A” testified that her relationship with the Member in Grade [XXX] was one of student and teacher. In Grade [XXX], he taught her [XXX] and their intimate relationship began in the second semester of this school year and ended on November 28, 2008. She said that the relationship with the Member evolved: “It more so evolved in the sense where hugging would occur and that proceeded to incidents of oral sex, fellatio eventually, and then it went back to kissing.”

Student “A” described the locations where the Member’s sexual touching of her and hers of him took place: in the classroom, in the [XXX] classroom, in one of the three [XXX] rooms, in the car and in the [XXX] Counsel for the College asked Student “A” about the physical structure of the [XXX] classroom. Student “A” confirmed that a movable wall was used as a back-drop for a [XXX]. She said that this wall leaned against one of the three classrooms in the [XXX] room.

Student “A” described how the sexual relations between her and the Member typically proceeded. At lunchtime, she went to one of the three rooms, the one on the left that was concealed by the movable wall, to wait for the Member. When he arrived, he kissed her, she pulled her underwear and pants down to her knees. She remained standing. The Member, on his knees in front of her, performed oral sex on her with his mouth on her vagina.

Student “A” reported a total of 15 incidents of “oral sex,” the last of which took place on November 28, 2008, but she could not recall when the first sexual relations occurred. Counsel for the College asked Student “A” about the number of incidents of oral sex in Grade [XXX] and Grade [XXX]. She seemed unable to provide the number but said there were more incidents in Grade [XXX].

Student “A” was not overly concerned about being seen, but said that the Member was, to the point that he took the time to lock the main door to the [XXX] and the [XXX] room during their encounters at the school. Student “A” also explained that to afford a better view of the situation,

the Member drilled holes in the movable wall.

Student “A” stated that her conduct was improper, “Because I thought that I was just deviant. I was just like a bad person. I thought that I was initiating all these incidents and that it was my fault, and that I was a home wrecker, I was going to ruin his family, ruin mine. I was more so concerned about his wellbeing than mine; I wasn’t at all concerned about myself.” Student “A” admitted that during this period, she experienced an “excessive state of infatuation” for the Member.

Student “A” admitted that she tried, several times, to end the relationship but the Member wanted to maintain it. He told her he was in love with her. In addition, according to Student “A”, the Member told her that if this matter between her and him became public knowledge, he would probably kill himself.

Counsel for the College asked Student “A” about the Member’s tattoo. She said she had seen it once when the Member was wearing short gym shorts. She said it was on his right thigh. She could not describe the tattoo because, she said, it looked “just like a blob of ink to me,” but she could state that the word “Poupette” (Dolly) was tattooed at the bottom of it.

September 2, 2008

Student “A” provided particulars concerning the incidents on September 2, 2008. She said that her family, except for herself and her brother, was out of town. She rode her bicycle to the town library and e-mailed the Member to tell him she was there. The Member picked Student “A” up from there and drove to [XXX]. The student said she met the Member twice on September 2, once in the morning and again in the afternoon. When they met in the morning, at approximately 11 a.m., they went down to the river. She said they did not have sexual relations because she was menstruating. The Member drove Student “A” back to town at about noon. Student “A” said she went to her grandmother’s [XXX] shop. The Member promised to come back in the afternoon.

She did, however, state that they had sexual relations when they met on the afternoon of September 2, 2008.

November 28, 2008

Student “A” described the fundraising events that were organized at the school on November 28.

When the assembly was over, Student “A” got into the Member’s car to go to Tim Hortons. She said he turned left on the highway to get to [XXX] Road. [XXX] Road is approximately [XXX] minutes before [XXX].

She said that [XXX] Road is approximately 15-20 minutes away from the school.

Student “A” explained that she wanted to go to [XXX] Road so she could talk to the Member.

She said that the Member reversed onto a snowy side road and stopped the car. She said that the place where he parked his car was not visible from the highway.

Student “A” confirmed that sexual relations took place in the Member’s car. She said she was on the passenger side with her seat back. The Member was on his knees in front of her performing oral sex on her. Her pants were down around her knees.

She heard someone knock on the window. She panicked, started crying and did not know what to do. Student “A” took the time to wipe the sweat from the Member’s head before he returned to his seat. According to her, when the Member also heard the person knocking on the car window, he said, “It’s a cop.” He returned to his seat. The car windows were fogged up.

Student “A” confirmed that before being intercepted by Constable Dahl, they had been there for at least 15-20 minutes.

Student “A” referred to the questions put to her by Constable Dahl. He asked her age and told her to go behind the car because he wanted to talk to her on her own. She told Constable Dahl that they were just hugging.

Constable Dahl told her to get into his car because he was taking her to the police station. Student “A” described the conversation between Constable Dahl and the Member before they left. She heard the Member tell the officer, “This could really screw me up.”

Student “A” confirmed that she gave her initial testimony when they arrived at the police station.

She said that her testimony to the police was false because she did not want the Member to get in trouble. Student “A” stated during this initial examination that nothing had happened in the car on [XXX] Road.

Student “A”’s parents picked her up from the police station. When she got home, she vomited. She went to bed at approximately 10 p.m.

September 29, 2008

Student “A” was confronted by her father early on the morning of November 29, at 4:30 a.m. He wanted to know whether she had sexual relations with the Member. She stated that her father told her that the Member had confessed and that she had to stop lying to the police and tell everything. Student “A” then admitted to having sexual relations with the Member.

On the morning of November 29, Student “A” went back to the police station with her parents.

She provided testimony a second time in response to questions from the police.

Counsel for the College asked Student “A” about her relationship with [XXX]. Student “A” said that the relationship was fairly brief. It took place when she was in Grade [XXX] and he was in Grade [XXX]. According to her, [XXX]. wanted a more serious relationship whereas she wanted a friend. She admitted that she was not interested in having a romantic relationship with [XXX], but said that the Member encouraged [XXX]’s relationship because he used this as a way of having access to Student “A”. She said that the relationship ended in late September or early October. According to her, [XXX] was not always kind to her. She admitted to being emotional at the time of the breakup.

In cross-examination, Student “A” recalled that she had known the Member since she was in Grade [XXX] at [XXX]. In addition to teaching her [XXX] in Grade [XXX], in the first semester the Member coached the [XXX] team, of which Student “A” was a member.

Counsel for the Member produced the floor plan for the school. Student “A” recognized the locations depicted on the map of the school. She said that the [XXX] classroom was connected to the [XXX] room. A connecting hallway led straight into the [XXX] room. On the right was another door leading to the [XXX] classroom. According to Student “A”, the [XXX] room had a direct view of the [XXX] classroom because there were windows.

Counsel for the Member produced a photograph of the classroom. Student “A” described the classroom with tables, [XXX] and two windows at the back. Student “A” also remembered that there was a [XXX] at the back of the classroom leading to the [XXX] classroom. Counsel for the Member showed her a photograph of the [XXX] classroom. Student “A” provided particulars concerning the layout of the furniture, the three classrooms at the back of the room [XXX] () and the [XXX] room’s [XXX] door. Counsel produced a photograph showing the left side of the [XXX] classroom and a photograph showing the [XXX] door inside the [XXX] room. Student “A” recognized the room from the photographs she was shown.

Counsel for the Member asked Student “A” about the [XXX] outside the [XXX] room. Student “A” said that in the second semester of Grade [XXX], in 2008, she and the Member had sexual relations in this [XXX] during the school day. She said again that the Member performed oral sex on her. As was usual, he was on his knees and she was standing, with her pants and underwear pulled down to her knees.

Student “A” stated that on several occasions the Member drove her and [XXX], [XXX]., to another school so she could teach a [XXX] class. Student “A” admitted that on several occasions, the Member drove some students to Tim Hortons in his car.

Counsel for the Member asked Student “A” about the events of November 28, 2008. Student “A” said that on November 28, she was in the passenger seat of the Member’s car on the way to Tim Hortons. They met some students outside. She said the Member stopped his car in front of the students to talk to them and urge them to stop smoking.

Counsel for the Member produced a photograph of the interior of a car similar to the one in which Student “A” and the Member found themselves on November 28, 2008. Student “A” reiterated that her seat was tilted back and the Member left his seat to kneel in front of her. She was sitting on the passenger side and he was performing oral sex on her. As was usual, she said that her pants and underwear were pulled down between her knees and her ankles. According to Student “A”, the Member was still wearing his coat.

When the Member and Student “A” heard someone knocking at the car window, Student “A” claimed that the Member scrambled over the console back to his seat.

Before he opened the window, Student “A” took the time to wipe the sweat from the Member’s head. She could not provide specific details about how the Member returned to his seat because she said she was in a panic. She said that the Member’s movement, from kneeling in front of the student sitting in the passenger seat to his own seat, made the car rock. She added that it was accomplished in a moment of panic.

When he returned to his own seat, she said that the Member wiped the window with his hand but she could not recall whether he rolled down the window or opened the door to talk to Constable Dahl. Even after reading a passage from the cross-examination conducted by Counsel for the Member during the criminal trial, Student “A” could not recall the precise sequence of events after they heard Constable Dahl knocking on the window. She agreed, however, that he returned to his seat in the space of a few seconds.

Student “A” recounted that Constable Dahl questioned the Member outside the car and she could not hear the conversation. Constable Dahl then questioned Student “A” outside the Member’s car. Counsel for the Member read another passage from the cross-examination during the criminal trial concerning Student “A”’s comment on the incident in the car: “The officer who came upon you at the scene was Officer Dahl and he indicates that you said to him in this conversation outside that car, that they were only talking and he was giving her a hug. And you told him that Congi did not touch her sexually and he did not her. Did you tell Officer Dahl all of that. And you replied ‘Yes.’”

Counsel for the Member questioned Student “A” concerning her initial testimony at the police station on November 28. She confirmed that a woman and a man interviewed her. Counsel for the Member read a passage from page 19 of Student “A”’s testimony to Constable Medeve: “Yes, I was really upset because of – [XXX]. (sic) and I had broken up.” Student “A” claimed that she gave this testimony because she did not want the Member to get in trouble.

Student “A” admitted that she telephoned [XXX]’s mother, [XXX], because she was upset over the breakup with [XXX].

Counsel for the Member recounted the incident of November 28 on [XXX] Road in which

Student “A” took the key out of the ignition of the Member’s car. Student “A” agreed that she had given a false version in her testimony to Constable Medeve. According to her testimony, she was upset about the breakup with [XXX]. She took the key out and wanted to talk. That, she said, was when the Member leaned over and gave her a hug. It was an innocent action, a little like a father with his child. She said that was the version she gave.

Student “A” admitted that her initial testimony on November 28, 2008 was different from that on November 29. In her November 28 testimony, Student “A” did not refer to the incidents which occurred on September 2, 2008, but she told the police about those incidents in her testimony on November 29.

December 1 Testimony

Student “A” provided testimony to the police for the third time on December 1. In response to questions by the Member’s counsel, she said that during this interview, she provided no additional information using the pretext that she answered only questions she was asked, but she maintained that she did not make up any stories.

Counsel for the Member asked Student “A” about the Member’s tattoo. She admitted that she had seen it when the Member was driving in his car, wearing short gym shorts. She could not give an exact description of the tattoo.

Student “A” provided details of her breakup with [XXX] . She admitted that he was the one who ended the relationship, for no reason. She was sad. She agreed with [XXX]’s testimony that she telephoned him several times, not just the single time she spoke to his mother, [XXX]. Counsel for the Member asked her about the day when she asked the Member to tell [XXX] to return her belongings.

Student “A” added that this story was painful for her and she was seeking justice to avoid a recurrence of such incidents.

Counsel for the College began her re-examination to clarify certain matters. The first question concerned her father’s questioning of her on November 29. Student “A” said that her father did not ask her whether the relationship with the Member had lasted a year and a half. Counsel for the College asked her if she was making up her testimony here today at the hearing. Student “A” answered emphatically that she was not making up her testimony.

Constable Jonathan Dahl’s Testimony

Constable Dahl is an Ontario Provincial Police (OPP) officer.

November 28

In his testimony, he provided precise particulars concerning November 28, 2008 by referring to his notes on the incident. That day, Constable Dahl’s shift began at 6 a.m. He said that it was snowing and approximately -1 degree Celsius. He patrolled the access roads to Highway [XXX]. Driving west on [XXX] Road, he noticed a parked car with fogged-up windows. After checking the licence plate

in the Ontario Ministry of Transportation data base, he approached the car. Constable Dahl said that [XXX] Road is approximately 12 to13 km away from [XXX], or approximately a 10-minute drive from [XXX].

He knocked on the car window. He said that it was difficult to see inside the car. Although the window was fogged up, he could detect movement from the passenger seat to the driver’s seat. According to him, the person moving was the Member. He said that the Member wiped the window and then opened the driver’s-side door. According to him, the Member appeared shocked and surprised to see him. He noticed that the Member was sweating profusely, especially around the

head and face.

Constable Dahl said there was a second person in the car. The passenger seat was tilted back. The passenger was in a horizontal position. He identified this person as Student “A”. Constable Dahl said that Student “A” looked away, was ill at ease and appeared embarrassed. While they spoke, he noticed the Member and Student “A” apparently adjusting their clothing.

Constable Dahl said that he questioned the Member, who was still sitting in his car with Student “A”. According to Dahl, the Member said that he was just talking with Student “A”. Constable Dahl found the Member’s version improbable. When he asked why the Member was in the passenger seat,

the Member said that he was giving Student “A” a hug to console her after the breakup with [XXX] . After the initial approach, he asked the Member to get out of the car for questioning. The Member said that he was just talking to Student “A”, but agreed that it was foolish of him to be there and indicated poor judgment on his part. Constable Dahl said that he rejected this explanation out of hand. He said that the Member asked him not to write up the incident and not to report this to his wife or the school board. Although both the Member and Student “A” told him that nothing had happened, he decided to take Student “A” to the police station for questioning by a female police officer. Notwithstanding the assertions by the Member and Student “A”, the situation raised doubts concerning their story and he did not want to leave Student “A” alone with the Member.

Constable Dahl also reported that the Member intervened, asking if he could take Student “A” back. Constable Dahl categorically refused this request by the Member. He told the Member that there would be an investigation and that he could leave. Before doing so, the Member stopped his car and asked him again not to report the incident. Constable Dahl said that the Member made him a proposal not to report the incident.

Constable Dahl said that during the drive from [XXX] Road to the police station, the conversation in the car between him and Student “A” primarily concerned her worry about her parents’ reaction because they were unaware of her relationship with [XXX].

Dahl confirmed that Student “A” was interviewed on November 28, 2008 by Officer Graham of the OPP and then by Officer Medeve of the OPP, a more experienced officer. Constable Dahl said that he asked that Officer Medeve question her as well, because he suspected that Student “A” had not disclosed all of the information during her questioning by Officer Graham.

During these examinations, Student “A” told them that the Member gave her a hug and kissed her on the lips.

November 29

According to Constable Dahl, Student “A” did not give a fuller version of the events until the next day, November 29, 2008, when she returned to the police station. The new statements by Student “A” resulted in the Member’s arrest on the evening of November 29. According to Constable Dahl,

the Member telephoned his wife once he had been arrested. Constable Dahl, at the Member’s request, telephoned for a taxi.

December 1

Dahl used photographs taken on December 1, 2008 to pinpoint the location where the car was parked. The first set of photographs was taken on the ground. The second set of aerial photographs, taken on April 7, 2009, showed the site. Counsel for the College showed him a set of 24 photographs of [XXX] [sic] Road and the interior of a classroom at [XXX]. Constable Dahl provided particulars concerning photographs 1-10. They show details concerning [XXX] [sic] Road, the area around Highway [XXX] and the fact that this location is isolated. Exhibits 10 and 10A identify the location but only with aerial photographs taken on April 4, 2009. Constable Dahl said that he was in the helicopter when the photographs were taken. He said that the Member’s car was parked on a little-used road some distance from Highway [XXX]. Constable Dahl marked the photograph with an X to show the approximate location of where the Member’s car was parked when he came upon it. Constable Dahl confirmed that the Member’s car was parked approximately 400 metres down the side road parallel to Highway [XXX]. He said that this was an estimate and the car was parked halfway down the side road. In cross-examination, Constable Dahl stated that he was patrolling on and around [XXX] Road on the morning of November 28, 2008. He was the first driver on [XXX] Road because he said he did not see any other tire tracks in the fresh snow. He said that he had not measured the distance from the Member’s car on [XXX] Road on November 28, but that when the photographs of the location were taken on December 1, the tire tracks were still visible.

Counsel for the Member asked Constable Dahl about his actions after checking the licence plate. Constable Dahl stated that he did not detect any movement in the Member’s car as his patrol vehicle approached it, but the windows were fogged up. It was only after knocking on the driver’s-side window that he detected movement from the passenger seat to the driver’s seat. He also noticed a window-wiping motion. He said that the Member opened his door in a few seconds.

He said that he saw Student “A” sitting in the passenger seat, which was tilted back.

Constable Dahl could not remember whether the Member was wearing his coat but stated that he and Student “A” were adjusting their clothing but were fully dressed.

At the request of Counsel for the Member, Constable Dahl confirmed the conversation with the Member, with Student “A”, the location of the car, the movement in the car, the Member’s hasty opening of the door, and his questioning of the Member and the Student. In view of the short period of time between his knock on the window and the Member’s opening of the door, the Member and Student “A” did not have time to construct and synchronize their stories, confirmed Constable Dahl. He stated again that the Member told him that nothing had happened in the car except that he had given Student “A” a hug.

Counsel for the Member questioned the validity of the notes made by Constable Dahl. He said that his notes provided some particulars but not a word-for-word account of a conversation or situation.

They were the notes taken at the time of the incident, not from an examination.

Constable Dahl confirmed the discussion he had in his car with Student “A” as they were driving to the police station. He acknowledged that Officer Graham questioned Student “A”, who provided little information on the incident. He said that Officer Medeve subsequently questioned Student “A”.

At the request of Counsel for the Member, Constable Dahl confirmed once more that the Member had said to him that he was acting inappropriately. He also stated that the Member asked him not to report the incident and suggested that he cover it up without mentioning it to the authorities.

Following the cross-examination, Counsel for the College was given permission to produce two exhibits. Exhibit 11, the transcript of the examination and cross-examination of Ms. Audet, caretaker at [XXX], and Exhibit 12, the testimony of Ms. Bobiwash, secretary at [XXX], were produced as evidence , in order to avoid having to call these witnesses.

Ms. Audet’s Testimony

Counsel for the College produced the testimony in chief and testimony in cross-examination of Ms. Audet, the school caretaker, during the criminal proceeding (Exhibit 11). She read out a few passages because the Committee members had not heard Ms. Audet’s testimony. Readers should note that the caretaker began her day at 3 p.m. and saw the Member and Student “A” together. The Committee did not accept any other information from this testimony.

Ms. Bobiwash’s Testimony

Counsel for the College also produced the testimony in chief and testimony in cross-examination of Ms. Bobiwash, the school secretary, during the criminal proceeding (Exhibit 12).

The Committee did not accept any information from this testimony.

Salvatore Congi’s Testimony

During the examination in chief, the Member confirmed that he was married to [XXX] and had two children: [XXX] and [XXX]. The Member said that he was currently working as a [XXX]. He obtained his teaching certificate in 1992. He taught [XXX]. In 2008, he had approximately 16-17 years of experience. He had already been teaching at [XXX] for 12 years in 2008. At the time of the incidents in November 2008, he was living in [XXX]. He and his wife taught in [XXX] for his wife and [XXX] for him. He confirmed that he was the “pinch hitter” and taught [XXX], [XXX], [XXX] and [XXX]. The Member’s extracurricular activities were coaching [XXX], basketball, track and field, soccer and hockey and acting as teacher advisor for the Student Council and technical director for theatrical productions.

The Member said that [XXX] had a family atmosphere because it had approximately [XXX] students and all the staff and students saw one another every day. He said that in addition to being a teacher, he was also a parent. The Member said that he knew every student at the school and the atmosphere was very family-like. He said that staff members often drove students for various reasons, such as extracurricular activities or even to Tim Hortons.

The Member provided particulars concerning the floor plan of the school: the location of his [XXX] classroom, the [XXX] room, the mezzanine and the [XXX]. He drew a sketch of the school. He explained that the [XXX] classroom and the [XXX] room were located at the north side of the school. There was no direct access to the [XXX] room; access was through the vestibule which led to the [XXX] classroom and the [XXX] room. He said that, from the vestibule, a door on the right led to the [XXX] room. There were two windows at the back of the [XXX] classroom and a bank of five windows that partitioned off the [XXX] classroom from the [XXX] room. At the back of the [XXX] classroom, there was also a glass door leading to the [XXX] room. The Member explained that there were three 10-foot by 12-foot rooms at the back of the [XXX] classroom: one for [XXX] work, one for [XXX] (known as the [XXX] room) and one for [XXX]. Counsel for the Member asked the Member about the [XXX] door at the back of the [XXX] room and a door leading outside next to the [XXX] door. The Member explained that he used the [XXX] outside the school, opposite the caretaker’s room, to store the [XXX] for the [XXX] course. The [XXX] door faced the school. He explained that all the classrooms on the west side of the school had windows and looked out on the [XXX].

The Member explained the reason for the scenery walls for plays. These false walls, one 8 feet high and 10 feet wide, and the other, 14 feet high or (sic) 16 feet wide, were built in the [XXX] room. The Member explained that once the play was over, the two false walls were stored in the [XXX] room. They went back to the [XXX] room on May 30 and were stacked together against the mezzanine, where they remained from May to late September.

The sketch of the school made by the Member on September 23, 2013 was submitted.

Counsel for the Member showed the Member Exhibit 4, which he identified as the [XXX] classroom. Counsel also produced Exhibits 5 and 6, which the Member confirmed were photographs of the [XXX] room from different angles. She added Exhibit 7, which the Member identified as the [XXX] door in the [XXX] room.

Counsel for the Member asked about the holes in the wall. According to the Member, there were no holes in the wall and he did not make holes in any of the walls. The Member denied having sexual relations with Student “A” in the [XXX] room, behind the theatrical scenery, in the three [XXX] rooms. He stated that he did not have sexual contact with Student “A”.

The Member admitted teaching a [XXX] course to Student “A” in Grade [XXX] and Grade [XXX]. He said that Student “A” wanted to be on the [XXX] team in Grade [XXX]. At the time, he was not the coach. Student “A” did not play on the team because her mother was against it since she had to play [XXX].

The Member provided particulars concerning the start of Student “A”’s relationship with [XXX].

It began at [XXX] camp. He said that [XXX] was starting Grade [XXX] at [XXX] [XXX] met Student “A” in late August because his wife went to her school to decorate her classroom for the start of the school year [XXX].

The Member said that the school year began on September 3, 2008. [XXX]. The Member stated that as soon as he got to the school, he went to his mail slot to greet his colleagues and then returned to class. He said hello to the students on the bench outside his classroom. He stated that Student “A” and [XXX] met at school every morning, noon hour and evening.

The Member said that several times, [XXX], he drove Student “A” and [XXX] to an English-language school because she was teaching [XXX] classes. It was during these trips that he learned of the breakup between [XXX] and Student “A”. The Member admitted having several short conversations with Student “A” after the breakup with [XXX].

The Member said that the [XXX] classroom was often used by students when he was in the classroom. They used the [XXX] to access programs that they could not access at regular times; to access some social sites. They used them during his lunch hour or preparation time. Student “A” used the [XXX].

November 28

The Member explained the incidents which occurred on November 28, 2008. He said that it was not an ordinary school day. An assembly was held in the gymnasium for a fundraising event for the [XXX] Food Bank. The Member confirmed that the assembly ended at approximately

11:45 a.m. The Member went back to class. He met with the girls on the [XXX] team because they wanted to know the departure time for the [XXX] tournament in Sudbury. He said that the scheduled departure time for the tournament was 1 p.m.

When he went back to his classroom for his coat, the Member said that Student “A” was sitting at the [XXX]. He told her he was going to Tim Hortons to watch the parade of two teachers in drag for a contest to raise money for the food bank. The Member said he invited Student “A” to get a ride to Tim Hortons with him. She did not wear her coat. As they left the school, the Member said he noticed two students smoking on a small hill. He stopped the car to advise the boys to stop smoking. The Member said that Student “A” was in his car in plain view at the time. The Member drove towards Tim Hortons, intending to turn right on Highway [XXX]. Student “A” put her hand on the wheel to head left. The Member said he was surprised and said to Student “A”, “Hey, what’s going on?” He said Student “A” wanted to talk to him.

The Member said that he turned onto [XXX] Road to reverse and head back to Tim Hortons. Because of the traffic, he decided to drive along to the next intersection to turn back. At this point, Student “A” became emotional and wanted to talk. She asked, “Oh, Monsieur, can we speak just a little more.” The Member wanted to get back and told Student “A”, “Well, I gotta go.” He said Student “A” turned off the ignition and removed the keys.

The Member said he began consoling Student “A” because she was upset. He said that her voice was cracking and she had tears in her eyes as she said, “Monsieur, I can’t take this anymore.” He started “preaching”. He admitted undoing his seat belt and giving her a comforting hug. As he was hugging her, the Member confirmed that someone he did not know knocked on the window.

He identified this person as Constable Dahl. The police officer asked him, “What’s going on?”

The Member said he replied that he was just talking to Student “A”.

The Member said that Constable Dahl asked him to get out of his car and they walked to the back of the car to continue the questioning. After that, Constable Dahl questioned Student “A”.

The Member confirmed saying to Constable Dahl that being with Student “A” in his car on a little-used road showed poor judgment on his part.

Because the Member was worried about gossip, he asked Constable Dahl not to report the incident.

The Member confirmed that he did not have sexual contact with Student “A” on [XXX] Road.

September 2

The Member provided particulars concerning September 2, 2008. He stated that he did not go to [XXX] with Student “A”. He attended the Professional Development (PD) Day at his school.

The meeting began at 9:20 or 9:30 a.m. He was in the meeting until 11:45 a.m. He picked up his wife from her school at about 12 p.m. for lunch. He was back at the school at 1 p.m. After the PD Day, he and his wife returned home about 3 p.m.

Counsel produced the Member’s absence record as evidence. It showed that he was at the school on September 2 because it was a compulsory day.

The Member identified a photograph of a tattoo on his upper right thigh. The upper part of the tattoo reads “Precious Angel” and the word “Poupette” is under the image. It symbolized the loss of a child, said the Member. He said that when he wears short gym shorts, the lower part of the tattoo is visible when he is sitting.

The Member denied any sexual contact with Student “A” in the [XXX], in his car, at the school or elsewhere. Moreover, he also denied telling Student “A” that he would kill himself if the whole matter became public.

The Member said that he was acquitted of all charges against him because of Student “A”’s allegations during his criminal trial. Furthermore, he said that no similar allegations had ever been made concerning him throughout his years of teaching. Counsel referred to the fact that in her testimony, Student “A” called him a pedophile. The Member admitted to being enraged by the statement. He said that he too was seeking justice.

In cross-examination, the Member said that he taught Student “A”. He said that he was in his car on November 28, 2008 with Student “A”. Counsel for the College asked the Member about the photographs of [XXX] Road (Exhibits 10 and 10-A). The Member disagreed with Constable Dahl’s statement concerning the location of his parked car. He said that the X marked on Exhibit 10-A was inaccurate. The Member indicated a circled X on Exhibit 10-A showing where his car was parked. He did not agree that it is an isolated location.

He confirmed that when Constable Dahl knocked on his car window, the windows were fogged up. He confirmed that his head was sweating because he was wearing his coat and he was hot.

The Member denied any sexual activity in the car on November 28, 2008 and contended that if he and Student “A” were engaged in sexual activity as suggested by Counsel for the College, he would not have been able to open the door as quickly as Constable Dahl stated that he had.

The Member added that he gave Student “A” a hug and a little peck on the cheek.

The Member answered questions about his conversation with Constable Dahl concerning “what he was doing there.” He said that for the initial questions by Constable Dahl, he and Student “A” were both in the car. The Member confirmed that when Constable Dahl asked, “What is going on here,” he answered, “We were talking.” The Member denied that he was on the passenger side when Constable Dahl knocked on the window.

The Member agreed that he asked Constable Dahl not to mention the incident at the school, because of the gossip. He added that he never asked Constable Dahl not to tell his wife.

The Member said that he could not have met Student “A” at about 11 a.m. or on the afternoon of September 2, 2008 because he attended the Professional Development Day and met his wife for lunch. He reiterated that he never had sexual contact with Student “A”. The Member said that

Student “A” was lying and he maintained his innocence.

The Member said that the door of the [XXX] room and the [XXX] was always open and that all staff had a key and could open the classroom door for students who wanted to use the [XXX] if it was locked.

The Member acknowledged that being with Student “A” in his car parked on a street was an error of judgement on his part.

In re-examination by Counsel for the Member, the Member said that he was never questioned by police after the encounter with Constable Dahl on [XXX] Road. When he was arrested, he retained a lawyer who told him not to discuss the incident.

[XXX].’s Testimony

In his examination in chief, [XXX] stated that he was [XXX] years old and lived in [XXX] with his parents. In 2008, he was in Grade [XXX] at [XXX] in [XXX]. He confirmed that he first met Student “A” at [XXX] camp in 2006. After [XXX] camp in 2008, he went out with Student “A” for approximately three months.

[XXX] said that he never went to Student “A”’s house because her parents were unaware of their relationship. He admitted telephoning Student “A” three or four times a week. He continued his testimony, stating that Student “A” telephoned his house more often. When he telephoned her house, he had to change his name. Student “A” told him, “When you call, change your name because if my parents find out I’m dating, they’ll kill you.” He said he was afraid to telephone Student “A”’s house.

[XXX] said that he met Student “A” several times before the start of the school year [XXX]. He also met Student “A” at school in the mornings, at lunch time and in the evenings after school. [XXX] confirmed that he broke up with Student “A” in early October 2008. He said that Student “A” was becoming “very obsessive, possessive” and she scared him. He admitted to breaking off the relationship in the [XXX] room by telling her that he was cheating on her with another girl. He stated that she was sad. He left the [XXX] room because he had a practice.

[XXX] said that he encountered Student “A” twice after the breakup, in December 2008 and February 2009. When they met in December, [XXX] stated that Student “A” asked him, “Do you know what happened between me and [XXX]?” [XXX] replied, “No, I don’t really care.” [XXX] recounted details of the second incident during the ski trip to [XXX] in February 2009. Student “A” was skiing with [XXX] and his friend. When he was alone with her on the ski lift, she said, “You probably hate me right now. Yeah, you probably want to push me off this lift, how much you hate me and how angry you are.” She said, “I hope you know that I didn’t want to do this, that it’s my dad who’s making me do this.”

[XXX] made no reply to Student “A”’s comments concerning the relationship between herself and [XXX] when the two of them were on the ski lift.

In cross-examination,[XXX] said that he decided to testify on this day because he was [XXX]. He did not testify at the criminal trial, at his parents’ request, because he was only [XXX].

[XXX] confirmed that he never asked [XXX] or Student “A” about the incident. He said that [XXX] treated Student “A” like any other student at the school. He admitted that [XXX] was a teacher who gave a great deal to the school, “who went the extra mile.” He said that he was “a truly outstanding teacher” and everyone knew that. Counsel for the College asked [XXX] about the two conversations in December 2008 and February 2009. According to [XXX], Student “A” did not tell him that she had made up the story and that she was lying.

He admitted that he never met Student “A”’s father but said he was “someone a little messed up.”

In re-examination, Counsel for the Member went back over the fact that [XXX] never asked Student “A” anything about [XXX]. [XXX] reiterated the times when he talked to Student “A”: in December and in February.

[XXX]’s Testimony

In her examination in chief, Ms. [XXX] confirmed that she had been teaching at [XXX] in [XXX] for six years. She said that the school year began on September 2, 2008 with a PD Day. She and her husband travel together on PD Days. She stated that she arrived at her school about 8:30 a.m. and the Member continued on to his school for the

PD Day. According to Ms. [XXX], the day ended about 3:15 p.m. and they returned home together.

She and her husband had lunch together that day. The Member picked her up from her school around noon and they drove to Subway. They went to the marina to eat. The Member drove her back to her school about 1 p.m. She telephoned her husband at his school in the afternoon, about 2 p.m., to tell him what time she expected to end her day.

She confirmed that [XXX] had a girlfriend/boyfriend relationship with Student “A”, which began at [XXX] camp in the summer of 2008. [XXX]

Ms. [XXX] confirmed that she encouraged Student “A” to go and see the Member: “If you’re ever upset, go and see Mr. Congi. His door is always open. He can talk to you.”

Ms. [XXX] said that she was aware that her husband occasionally talked to Student “A” and some of these conversations concerned [XXX]. She said that her husband had a good relationship with all of the students and he knew them all.

Concerning the events of November 28, 2008, Ms. [XXX] was not surprised to learn that her husband was in his car with Student “A” and they were talking. She was aware of the allegations that her husband appeared to have had a sexual relationship with Student “A”.

COURT DOCUMENT

Counsel for the Member produced legal evidence in support of her submissions to assist the Committee.

• The caretaker’s written testimony

• The secretary’s written testimony

EXHIBITS

Exhibit 1: Notice of Hearing, dated January 13, 2013

Exhibit 2: The Member’s Certificate of Qualification

Exhibit 3: Unofficial floor plan of the school

Exhibit 4: Photograph of the classroom, for identification purposes only

Exhibit 5: Photograph of the [XXX] classroom, for identification purposes only

Exhibit 6: Photograph of the [XXX] room showing the left side of the classroom, for identification purposes only

Exhibit 7: Photograph of the [XXX] room looking towards the [XXX] door

Exhibit 8: Photograph of the interior of a vehicle, for identification purposes only

Exhibit 9: 24 photographs of [XXX] Road and a classroom at the school

Exhibit 10: Aerial photographs

Exhibit 10-A: Aerial photograph of [XXX] Road

Exhibit 10-B: Concerning [XXX] Road

Exhibit 11: Transcript of the examination of Ms. Audet, the school caretaker, dated January 4, 5 and

6, 2010 in [XXX]; and transcript of the cross-examination

Exhibit 12: Transcript of the examination and cross-examination of Ms. Bobiwash, the school secretary, on January 4, 5 and 6, 2010 in [XXX]

Exhibit 13: Sketch of the school done by the Member on September 23, 2013

Exhibit 14: The Member’s absence record

Exhibit 15: Copy of the tattoo on the Member’s right thigh

Submissions by Counsel for the College

Counsel for the College said that the central allegation in this case was that the Member had an inappropriate sexual relationship with Student “A”. She then presented allegations such as the inappropriate personal relationship with Student “A” and the e-mail correspondence. Lastly, she summarized the pertinent testimony.

Counsel for the College produced evidence in support of her claims, thematically, to support the contention that the Member was guilty of professional misconduct; to wit:

• The Member was in a car in the middle of the day, 13 kilometres away from the school, in an isolated location known to all;

• The Member gave Student “A” a hug in the car;

• The Member gave Student “A” a peck on the cheek;

• The Member acknowledged that he showed poor judgment;

• Student “A” confirmed that a sexual relationship involving oral sex had been going on for a lengthy period of time;

• Student “A” confirmed that sexual relations took place in the car on November 28, 2008;

• Student “A”’s version differed slightly from Constable Dahl’s because she did not want to harm the Member;

• Student “A” has not lied from the beginning;

• Constable Dahl is a trustworthy and accurate witness with no reason to favour one version over another;

• Constable Dahl discussed circumstances in which he discovered the Member and Student “A”;

• Constable Dahl’s version does not support the Member’s version; it supports Student “A”’s version;

• Ms. [XXX]’s testimony is not helpful because she cannot confirm the Member’s presence during the incidents;

• The Member is trying to conceal a sexual relationship.

Counsel for the College said that there are two contradictory pieces of testimony. According to her,

the Member denied everything whereas Student “A” said that a sexual relationship involving oral sex had been going on for a lengthy period of time and stated that this is what had occurred in the car on November 28, 2008 when Constable Dahl knocked on the car window. According to Counsel for the College, Student “A” had not lied from the beginning.

Counsel for the College relied on several passages from the examination of the caretaker, Ms. Audet, during the Member’s criminal trial, to attempt to show that the relationship between the Member and Student “A” was more intense and they saw one another often.

Counsel for the College based her submissions on the credible testimony of Constable Dahl. He is a trustworthy and accurate witness with no reason to favour one version over another. According to her, Constable Dahl’s version should take precedence because it is credible and supports Student “A”’s version rather than the Member’s.

Counsel for the College submitted the rule in Browne v. Dunn, based on an excerpt from Justice Sopinka’s doctrinal text, The Law of Evidence in Canada.

She referred to a passage from Sopinka and a decision by the English House of Lords.

Accordingly, if counsel is considering the impeachment of the credibility of a witness by calling independent evidence, the witness must be confronted with this evidence in cross-examination while he or she is still in the witness box. The rule applies not only to contradictory evidence but to closing argument as well.

She explained the rationale for the rule and its flexibility.

The rule is designed to accord fairness to witnesses and the parties. It is therefore not absolute, and the extent and manner of its application determined by the trial judge in all the circumstances of the case. The factors which may be taken into account include: 1) notices given beforehand to the witness that his or her credibility is an issue; 2) the testimony is of such a nature that it is obvious that credibility is an issue; 3) failure to cross-examine is based on concern for the witness as in the case of a child of tender years.

She argued that Counsel for the Member had contravened the rule because she failed to submit some items of evidence to the witnesses in her cross-examination. Because of this omission, a portion of the testimonial evidence produced by the Member should be dismissed because of the contravention of the rule in Browne v. Dunn.

Submissions by Counsel for the Member

Counsel for the Member began her representations by arguing that Student “A”’s testimony was unreliable while the Member’s was credible and reliable and his version of the facts was more consistent with reality. Counsel for the Member produced the decision in Schaeffer v. Ontario (Provincial Police). She produced a passage describing the nature of note-taking by a police officer when an incident occurs. Counsel for the Member stated that Constable Dahl’s notes were not precise or comprehensive. According to her, Constable Dahl’s notes should not merely be a summary or memorandum as he stated in his testimony. Counsel for the Member said that without a full record of the exchanges between the Member and Constable Dahl, this testimony was worthless. She produced passages from the jurisprudence in Browne v. Dunn. R. v. Paris by the Court of Appeal for Ontario was also submitted. She then submitted more serious allegations stating that the Member’s testimony was credible.

To clarify the Member’s position, Council produced the decision by the Court of Appeal for Ontario in R. v. M.B. [2011], at para. 30: “[…] … there is another particularity [sic, particularly] troubling aspect of the Crown’s closing. It is the way the Crown addressed the issue of the complainants’ motive [...] about what their uncle had done to them.” She went on to explain that this decision was relevant to the matter of motive: “The Crown told the jury that no reason for the girls fabricating these allegations emerged because there was no such reason since the girls were telling the truth.”

At para. 31, the Court states:

The concern raised by these submissions is aptly captured by the words of this court in R.v. L.L. 2009 ONCA (…). The difficulty with these comments is twofold. First, they appear to suggest that the Crown proved lack of motive to fabricate when the evidence was not capable of supporting such a finding. Second, by asking highly (…).”

She drew the Committee’s attention to the jurisprudence concerning the matter of motive: “Because a person’s motives can sometimes be hidden, there is a difference between absence of apparent motive and proven absence of motive; (…).”

Counsel for the Member presented the elements thematically, as follows:

• Student “A”’s testimony is not credible;

• Student “A” testified concerning the episode of oral sex in the [XXX] for the first time at this hearing;

• no evidence of sexual contact exists for the [XXX] episode on September 2, 2008;

• Student “A” does not know the meaning of the tattooed image because she dislikes tattoos;

• the Member claims that when he is wearing short shorts and sitting down, the word “poupette” is visible;

• Student “A” testified that the Member would kill himself if the whole matter became public and that the Member was careful to close the main [XXX] door and make holes in the wall;

• Student “A” testified that she was unconcerned about being seen with the Member;

• on November 28, 2008, there is no indication that the Member demanded a sexual act;

• Student “A”’s testimony reveals that she was the one who asked to go in the opposite direction from the Tim Hortons;

• [XXX]’s and Ms. [XXX]’s testimony to the fact that Student “A” was upset by the breakup with [XXX];

• the Member testified that if the goal was to be alone, it would have made more sense for him to drive further on instead of turning into the street and not reversing;

• the photographs of the tire tracks were not taken that day and the car’s position was not marked in any way that day;

• Constable Dahl admits that he had no reasonable grounds for arresting the Member on

November 28, 2008;

• Constable Dahl made no note of the exact words the Member is supposed to have uttered on the subject of “Let’s make a deal”;

• Student “A”’s initial version to Constable Dahl outside the car on November 28 is the truth;

• Student “A” admitted that her parents were strict and “I did not raise questions about authority.”

In citing Schaeffer v. Ontario (Provincial Police) at para. 68, Counsel for the Member maintained that a police officer has an obligation to take notes.

OPP Orders confirm officers’ professional obligation to take “concise, comprehensive particulars of each occurrence” during an officer’s tour of duty: (…) Police officers are trained that their “(n)otes must contain your independent recollections providing an accurate and complete account of police observations and activities” and that “entries are to be made during or as close to the investigations [sic, investigation] as possible.”

(69) Reliable independent and contemporaneous police officer notes are central to the integrity of the administration of criminal justice. Police officers’ notes provide the basis for laying charges and they provide Crown Attorneys with a record upon which to base decisions regarding the prosecution of the case.”

She went on to state that a police officer’s obligation does not change, whether he must testify in court or elsewhere:

(70) The police officer’s notes are also used to assist the officer in testifying at trial. When used for that purpose, it is vitally important to the reliability and integrity of the officer’s evidence that the notes used record the officer’s own independent recollection. (…)

Counsel for the Member argued that the wording alleged by Constable Dahl had almost no probative value.

Counsel for the Member also produced Stephen Neil, A.V. MacNeil [reference not found], a judgment handed down by the Court of Appeal for Ontario in 2000. She drew the Committee members’ attention to paras. 38-45 on the importance of asking questions in cross-examination.

She cited para. 45 in R. v. Vernet [sic, Verney], a judgment handed down by the Court of Appeal in 1997:

Browne v. Dunn is the [sic, a] rule of fairness that prevents the ambush [sic, “ambush”] of a witness by not giving him an opportunity to state his position with respect to later evidence which contradicts him on an essential matter. It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness [sic, witness’s] evidence-in-chief, putting him on notice of every detail that the defence does not accept. Defence counsel [sic, Defence] must be free to use his own judgment about how to cross-examine a hostile witness. Having the witness repeat in cross-examination, everything he said in-chief, is rarely the tactic of choice.

She also referred to R. v. Paris, a judgment handed down by the Court of Appeal for Ontario in 2000 on the issue of cross-examination, citing para. 23 setting out the factors to consider:

The potential relevance to the credibility ... on [sic, of ...] the failure to cross-examine a complaint [sic, complainant] on matters that the accused subsequently contradicts in his testimony will depend on many factors: (…) the nature of the matters on which the witness was not cross-examined, the overall tenor of the cross [sic, cross-examination], and the overall conduct of a [sic, the] defence[. ...] the position of the defence on the matters on which the complainant was not cross-examined will be clear [even] without cross-examination. In overt [sic, other] circumstances, the areas not touched upon in cross-examination will not be significant in the overall context of the case. In such situations, the failure to cross-examine will have no significance in the assessment of the accused’s credibility. In overt [sic, other] circumstances, however, where a central feature of the complainant’s evidence is left untouched [...] or even implicitly accepted in that cross-examination, then the absence of cross-examination may have a negative impact on the accused’s credibility.

Counsel for the Member contended that the allegations of professional misconduct against the Member were unsubstantiated. The situation warranted at most a warning to the Member.

Counsel for the College responded by submitting clarification. She did not agree with the judicial principles submitted by Counsel for the Member and said that the judgments cited could be differentiated. She pointed out that the criticism levelled at Constable Dahl’s notes was not in order and referred to Schaeffer v. Ontario (Provincial Police) at paras. 66-70, in which a police officer takes notes as quickly and accurately as possible.

The fact that Constable Dahl found that the Member had not committed a crime, according to Counsel for the Member, was not admissible evidence.

1. Testimony heard at this hearing must be accepted.

2. The Member’s initial testimony was not the whole truth because he admitted at the criminal trial and in cross-examination before the Committee that in addition to a hug, he gave Student “A” a peck on the cheek.

3. She contested R. v. M.B. produced by Counsel for the Member because, in her opinion, it was possible to examine the motives inappropriately.

DECISION

(i) Onus of proof and standard of proof

The College is required to prove the allegations in accordance with the standard of proof set out in F.H. v. McDougall, [2008] SCR 53; that is, the balance of probabilities. As always, the panel relies on clear and convincing evidence.

(ii) After hearing the testimony and reviewing the relevant admissible evidence, and the submissions by counsel, the Committee recognizes that the facts support the case for professional misconduct and finds that the Member is guilty of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(14), 1(15), 1(18) and 1(19), as set out in the Notice of Hearing. The Committee finds, however, that the testimony, the relevant evidence and the submissions by counsel fail to prove that the Member contravened Ontario Regulation 437/97, subsections 1(7.1), 1(7.2), 1(7.3), 1(16) and 1(17), as set out in the Notice of Hearing dated January 13, 2012.

The Committee further finds that the Member did not abuse a student sexually as described in sections 1 and 40(1.1) of the Act.

REASONS FOR DECISION

Analytical Criteria

As noted above, the onus of proof rests with the College. In hearings held by the College, the standard of proof is the standard in civil cases, namely, the balance of probabilities, which consists in determining the likelihood of the occurrence of the alleged events.

In assessing the evidence, the Committee applies the guidance provided by the courts with respect to assessing witness credibility. It determines whether witnesses appear trustworthy, sincere and straightforward, and do not appear evasive, taking into account their behaviour, appearance and manner of expressing themselves. To assess the reasonableness of witness accounts, the Committee also considers the consistency of testimony and any contradictions. Time and circumstances are also considered in the assessment of credibility. When weighing inconsistencies relating to the time or location of events, the Committee takes into account the student’s age at the time of the incidents, the witnesses’ situations and the passing of time. Memory and faculties of perception and observation are important analytical criteria: the Committee must look at witnesses’ ability to recall the facts of an incident while assessing their capacity for accurate observation. To assess the veracity of statements made during the hearing, the Committee also considers witnesses’ personal interest and any bias.

The Committee is aware of the importance of its duty to state clearly its grounds for giving credence to or dismissing testimony. All of the parties to a proceeding must be confident that they have been understood and treated fairly. The Committee assesses the relative probative value of testimony as well as any discrepancies. It relies on common sense and its knowledge of human nature when considering the factors described above. The Committee is also aware of the importance of determining whether testimony is probable or improbable.

ASSESSMENT OF WITNESS CREDIBILITY

Student “A”

The importance of Student “A”’s testimony lies in the evidence provided with reference to the incident on November 28, 2008. This evidence contributes to and supports the facts relating to the testimony of others such as Constable Dahl. More specifically, some particulars provided by Student “A” relating to the [XXX] Road incident recur in the constable’s account, namely, the fogged-up windows, the sweat on the Member’s head and the dates of the first and second examinations at the police station. The Committee also notes that Student “A” communicated her interpretation of the facts to the best of her ability.

Nonetheless, the Committee dismisses all of Student “A”’s testimony alleging a sexual relationship with the Member at the time, because Student “A” does not appear to remember the start of the sexual relationship and the versions of her reports to the police are inconsistent. Furthermore, she brought forward a new allegation at the hearing concerning another location where she had sexual relations with the Member: the [XXX] in front of the school’s [XXX] room. Yet when asked why she never made this allegation to the police or during the Member’s trial, she replied evasively that nobody had asked her the question before. It is unlikely, however, that she was never asked to specify the locations where she had sexual relations with the Member. Similarly, there is no evidence for the incident on September 2, 2008 at [XXX]. The fact that Student “A” refers to a sexual relationship with the Member does not constitute probative evidence because the witness cannot provide adequate particulars in support of this statement. Consequently, in the Committee’s opinion, Student “A” is evasive concerning the events relating to the sexual relationship.

Her testimony concerning the incidents of September 2, 2008, the sexual relations in the [XXX] room, the [XXX] and the Member’s car is unconvincing because of the lack of supporting evidence. Apart from the incident on September 2 and on November 28, Student “A” cannot confirm the dates of the other purported sexual relations with the Member.

She acknowledges that the Member has a tattoo on his upper right thigh, but cannot describe it except for the word “Poupette.” She noticed it when the Member was wearing shorts for Phys. Ed., but states that she did not notice it during the sexual relations. Student “A”’s ability to recognize part of the Member’s tattoo does not prove a sexual relationship between Student “A” and the teacher.

Constable Dahl

Constable Dahl’s testimony concerning the incident on November 28, 2008 provides crucial support for the Committee’s finding of professional misconduct. The Committee also notes that Constable Dahl communicated his interpretation of the facts to the best of his ability, using his personal notes relating to the incidents at issue.

As previously noted, the evidence provided by Constable Dahl corroborates certain elements of Student “A”’s testimony, such as the sweat on the Member’s head and the fact that the constable drove the student to the police station for questioning. As for the similarities between the constable’s testimony and the Member’s, both witnesses refer to the perspiration on the teacher’s forehead and agree that the Member asked Constable Dahl not to report the incident.

Nonetheless, the Committee dismisses all of his testimony confirming the movement from the passenger seat to the driver’s seat, because all of the testimony heard states that the car windows were fogged up. Since he could not see inside the car when he came up to it, Constable Dahl cannot confirm whether the Member actually moved from the passenger seat to the driver’s seat, as he suggests.

Salvatore Congi

Salvatore Congi’s testimony provides crucial support for the Committee’s finding of professional misconduct. The Committee notes that the Member communicated his interpretation of the facts to the best of his ability. He acknowledged that he was parked on [XXX] Road with Student “A” on November 28, 2008. He stated that Student “A”’s motivation for not wanting to go to Tim Hortons was to take the time, away from others, to discuss her breakup with [XXX]. The Member stated unequivocally that he exercised poor judgment in being in his car alone with Student “A” on [XXX] Road.

He agreed with Constable Dahl’s comment that there was sweat on his head and the car windows were fogged up when he was questioned. He said that he was hot and was wearing his coat.

The Member’s testimony does not support the allegation that he had sexual contact with Student “A”.

[XXX].

Student “A”’s mother recounted the facts surrounding the occasion when she learned that her daughter was at the police station. She said that she went to the police station on November 28, 2008 to pick up her daughter. She also stated that her daughter was questioned twice: first on November 28, and then on November 29. She provided few particulars that could support the allegation of a sexual relationship. She acknowledged that her daughter was friends with [XXX], but stated that they were not in a romantic relationship. This is what the Committee has accepted from this testimony.

[XXX].

His testimony recounted the facts of his relationship with Student “A”, which lasted less than three months. He alluded to two encounters after their breakup. In the Committee’s opinion, these two encounters with Student “A” provide no credible evidence to support the allegations in the Notice of Hearing concerning conduct which contravened the standards of the teaching profession in that the Member allegedly had an inappropriate or sexual relationship with Student “A”, or any other allegations. In his account of the two encounters, [XXX] never stated that Student “A” spoke to him concerning a sexual relationship with [XXX].

In its assessment of this testimony, the Committee notes that [XXX] was not an eye witness to the purported meetings between Student “A” and [XXX]. Moreover, his conversations with Student “A” provide no particulars concerning the incident of November 28, 2008. Consequently, the Committee gives this testimony little weight.

[XXX]

The Committee considers this testimony somewhat pertinent because Ms. [XXX] stated that she was aware of the teacher/student relationship between her husband and Student “A”. She testified that her family lives in a small community where everyone knows one another and the school has a family atmosphere. This statement was confirmed by the Member. Given this community context, the Committee finds it normal that Ms. [XXX] should be aware of the relationship between the Member and Student “A”. It also accepts this witness’s explanation of the romantic relationship between [XXX] and Student “A”. She confirmed [XXX] statement that Student “A” often telephoned their house during the relationship and said that after the young couple broke up, she spoke once with Student “A” to give her advice. What she says concerning the relationship between [XXX] and Student “A” is supported by the statements made by [XXX] and Student “A” and may support Counsel for the Member’s contention that Student “A” was somewhat emotional.

This testimony is also important for the following reason: in the Committee’s opinion, her testimony casts doubt on Student “A”’s version of the facts concerning the day’s events on September 2, 2008. According to her version of the facts, she and the Member, her husband, drove to work together, drove together for lunch away from the school and returned home together on September 2.

She stated that this was their routine procedure on a Professional Development Day and stated unequivocally that this was what took place during her day on September 2, 2008.

Student “A”, however, stated that on September 2 she and the Member drove to [XXX] in the late morning. Afterwards, according to her testimony, the Member drove her back to her grandmother’s [XXX] shop. In the Committee’s opinion, a teacher’s absence during a Professional Development Day would be noticed, especially in a small community and in a school with a family atmosphere. For this reason, it believes that Ms. [XXX]’s testimony raises significant doubt in the Committee’s mind concerning the accuracy of Student “A”’s statement that she had sexual relations with the Member on September 2, 2008.

Consistency of the Totality of the Evidence

Each witness’s testimony presents strengths and weaknesses. Some facts appear to be difficult to recall, which calls into question the accuracy of the facts recounted.

With respect to the matter of a sexual relationship, the totality of the evidence is contradictory.

The witnesses involved in the incidents of November 28, 2008 are Student “A”, the Member and Constable Dahl. These three are the sole eye witnesses, because the other witnesses were not present for precise observation of the incident. Apart from the Member and Student “A”, the only witness who might have seen any act whatsoever corroborating the allegations in the Notice of Hearing is Constable Dahl who, on November 28, says he saw movement “from the passenger seat to the driver’s seat.” As previously stated, however, the Committee notes that when the constable was making the observation, the Member’s car windows were fogged up and Constable Dahl could not identify who had moved. Because his view was obstructed, in the Committee’s opinion the constable’s testimony does not support the allegation that the Member had sexual relations with Student “A” in a car on November 28, 2008.

Concerning the other alleged incidents of sexual relations, Student “A” and the teacher are the only eye witnesses. The Committee notes that Student “A” and the Member maintain their versions of the facts, which are diametrically opposed to one another. According to Student “A”, sexual relations took place with the Member, whereas the Member denies any sexual contact with Student “A”.

No written evidence of a sexual relationship between Student “A” and the Member was produced.

The onus of proof rests with the College to produce clear, convincing evidence based on sound testimony that the Member contravened several provisions of Regulation 437/97 on the balance of probabilities. The Committee notes, however, that there are significant gaps in Student “A”’s testimony and her credibility is at issue. She submitted a new allegation at the hearing to the effect that the Member had sexual relations with her in the [XXX] in front of the school’s [XXX] room, but could not explain why she had never mentioned this location during the proceedings leading to the criminal trial or during the actual trial. Furthermore, although the witness referred to several locations where sexual relations occurred, she provided dates only for the [XXX] and [XXX] Road incidents. She could not recall the dates of other purported meetings with the teacher, nor provide adequate particulars.

Ms. [XXX]’s testimony also casts doubt on the allegation of sexual relations on September 2. In view of the gaps that have been identified and the evidence of the Member and Ms. [XXX], and in the absence of other eye witnesses, the Committee prefers their testimony and finds that the College has failed to prove that a sexual relationship between the Member and Student “A” in fact took place.

Notwithstanding the contradictions relating to the allegations of sexual relations, the Committee is aware of certain consistencies in the witnesses’ evidence. The testimony of Student “A”, the Member and Constable Dahl corroborate the fact that the Member and Student “A” were on [XXX] Road on November 28. All three pieces of testimony have certain similarities concerning the following facts: parked on [XXX] Road, in the Member’s car, fogged-up windows, Constable Dahl questioned the Member and then Student “A”, the Member’s head was sweating, Constable Dahl drove Student “A” to the police station for questioning and talked to her on the drive to the police station.

No evidence was provided concerning the inappropriate e-mail correspondence or the Member’s violation of a condition of the undertaking referred to in paragraphs 4(a) and 5 of the Notice of Hearing. In view of the lack of evidence in this regard, the Committee dismisses these allegations.

Finding of Professional Misconduct

The Committee finds that the Member is guilty of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(14), 1(15), 1(18) and 1(19). It finds, however, that the evidence produced is insufficient with respect to the counts contained in Ontario Regulation 437/97, subsections 1(7.1), 1(7.2), 1 (7.3), 1(16) and 1(17).

The Committee finds that the Member is not guilty of sexual abuse of a student as described in section 1 and subsection 40(1.1) of the Act.

The Act defines “Sexual abuse” as follows:

“sexual abuse” of a student by a member means,

(a) sexual intercourse or other forms of physical sexual relations between the member and the student,

(b) touching, of a sexual nature, of the student by the member, or

(c) behaviour or remarks of a sexual nature by the member towards the student.

The Committee carefully reviewed the evidence, which supports the College’s contention that this teacher is guilty of professional misconduct. The fact that the Member was with Student “A” in his car on a little-used road is uncontested. The teacher even acknowledged his lack of judgment in regard to being alone with Student “A”, in his testimony. The Committee finds such incidents highly inappropriate. The Member had a responsibility to maintain a professional relationship with all of his students, including Student “A”, and he should have maintained a professional teaching relationship with this Student “A” at all times. The nature of the Member’s conduct considerably exceeds the permissible boundaries between teacher and student. No explanation could satisfactorily justify his careless conduct with Student “A”. The Member made an error of judgment and is guilty of professional misconduct in being with Student “A” in his car on an isolated road.

Section 32.02 of the College Bylaws states that members of the College, in their position of trust and influence, must maintain “professional relationships with students,” recognize and respect “the privileged nature of the relationship that teachers maintain with students” and “act with integrity, honesty, fairness and dignity.” The Committee finds that the Member failed to maintain these standards of the teaching profession by being alone with Student “A” in his car on an isolated road.

In so doing, the Member contravened clause 264.1(c) of the Education Act and engaged in conduct unbecoming a member. In view of his position of authority over Student “A”, his abuse of trust utterly contravenes the duties of the teaching profession. Moreover, by asking the constable not to report the [XXX] Road incident to the school board or to his wife, the Member committed acts that would reasonably be regarded by members as disgraceful and dishonourable.

The Committee cannot support the contention that Salvatore Congi abused Student “A” physically, emotionally or sexually, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(7.2) and 1(7.3). No evidence has been submitted in support of these allegations.

The Committee further finds that the evidence does not adequately show that the Member is guilty of professional misconduct in that:

1. 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);

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

After hearing the submission by Counsel for the College and in view of the statements made by the witnesses, the Committee is confident that its proceedings have been as fair as possible. The testimony of some witnesses varied in credibility, being both contradictory and unsubstantiated. The Committee cannot find that the Member had sexual contact with Student “A”, but his conduct was inappropriate and constitutes flagrant disregard of the professional relationships which must exist between a teacher and a student. In view of the Member’s actions, the Committee finds him guilty of professional misconduct.

February 5, 2014

Jean-Luc Bernard, OCT,

Chair, Discipline Committee

Marie-Louise Chartrand,

Member, Discipline Committee

Louis Sloan, OCT,

Member, Discipline Committee