DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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 Laird Arthur Evans, a member of the Ontario College of Teachers.
PANEL: Robert Gagné, Chair Shanlee Linton, OCT Wes Vickers, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Caroline Zayid, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk
-and-
LAIRD ARTHUR EVANS (CERTIFICATE #152133) Susan Chapman, Ursel Phillips Fellows Hopkinson LLP on November 3, 2014 for Laird Arthur Evans, who was not present or represented on October 22, 2014
Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: October 22 & November 3, 2014
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 22, 2014 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated August 28, 2013 was served on Laird Arthur Evans (the “Member”), requesting his attendance before the Discipline Committee on September 24, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 22, 2014. The proceedings continued on November 3, 2014
On October 22, 2014, the Member did not attend the hearing and did not have legal representation.
Counsel for the College submitted an Affidavit of Annie Lacroix, affirmed October 20, 2014 (Exhibit 2) to prove that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty being sought. In this affidavit, Ms. Lacroix, a law clerk with McCarthy Tétrault, outlines her communications with the Member and provides proof of service of all required documents. Despite numerous attempts to notify the Member of the allegations against him and the details of the hearing, the Member either did not respond to communications or Ms. Lacroix had her written communications returned unopened, noted as “return to sender”.
In light of this affidavit, the Committee was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was made aware of the time and date of the hearing and the penalty being sought. The Committee therefore began to hear the matter in the absence of the Member.
During the hearing on October 22, 2014, however, College Counsel received correspondence from the Member’s brother, Langley Evans, who claimed to have Power of Attorney over the Member. As documented in the Affidavit of Langley Edward Evans (Exhibit 7), Langley Evans claimed that neither he nor the Member had received the Notice of Hearing (Exhibit 1) and requested an adjournment so that he could make submissions to the Committee on behalf of the Member. Given this new information and the potential incapacity of the Member, the Committee decided to adjourn the hearing until November 3, 2014 to allow Langley Evans the opportunity to make submissions on the Member’s behalf.
At the continuation of the hearing on November 3, 2014, the Member was not present but had legal representation. Counsel for the Member submitted that, although the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (“College Rules”) do not address the issue of litigation guardians, the Committee had jurisdiction to recognize Langley Evans as the Member’s litigation guardian. Member’s Counsel submitted that the Committee could take guidance from Rule 7.02(1.1) of the Ontario Rules of Civil Procedure, RRO 1990, Reg 194, which dealt with an analogous situation in the context of court proceedings. College Counsel agreed that it would be appropriate for the Committee to recognize Langley Evans as the Member’s litigation guardian, and noted that Rule 1.02 of the College Rules gave the Committee broad powers to interpret the rules in a way that ensures the just determination of all proceedings.
Given the agreement of both parties, on November 3, 2014, the Committee recognized Langley Evans as the Member’s litigation guardian for the purposes of these proceedings.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing dated August 28, 2013 are as follows:
IT IS ALLEGED that Laird Arthur Evans is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (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 failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(c) 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);
(d) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);
(e) 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
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Laird Arthur Evans is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the Ottawa-Carleton District School Board as a teacher at [XXX] School (the “School”), in Ottawa.
While a teacher at the School, the Member:
(a) stored a collection of firearms and/or related materials in the School, including one or more functional and/or deactivated and/or replica weapons;
(b) stored a rifle and high capacity UZI magazine in the School;
(c) permitted students to access the weapons at the School;
(d) owned a restricted and/or prohibited firearm without the required licence and/or registration.
- On July 29, 2011, the Member was found guilty of possession of a firearm without a licence, contrary to Section 91(3) of the Criminal Code of Canada.
MEMBER’S PLEA
As the Member was not initially present or represented by counsel, the Committee proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing. The Chair, on behalf of the Member, entered a plea of not guilty to the allegations.
THE EVIDENCE
The College called two witnesses, Mr. Reginald Lavergne and Detective Christopher O’Brien.
College Counsel also entered into evidence the Registered Member Information for Laird Arthur Evans (Exhibit 3), which indicates that the Member was registered with the College during the period of the alleged events. In addition, College Counsel provided the Committee with a Brief of Court Documents: Laird Arthur Evans (Exhibit 5) which contained the following documents:
Information and Appearances – June 29, 2010 to July 29, 2011; and
Transcript from Proceedings before the Honourable Justice Wake – July 29, 2011.
The evidence presented in Exhibit 5 confirms that on July 29, 2011, the Member pled guilty to possession of a firearm without a licence, contrary to section 91(3) of the Criminal Code of Canada. He was sentenced to a conditional discharge and placed on probation for a period of 12 months. Justice Wake also ordered the forfeiture of all items seized by the police on May 27, 2010 and further ordered that the Member be prohibited from possessing any firearms, ammunition, or explosive substances as set out in section 110 of the Criminal Code for a period of five years.
Testimony of Reginald Lavergne
Mr. Reginald Lavergne is a member of the Ontario College of Teachers and began his teaching career in 1998. He has since completed his Principal’s Qualifications and, in 2009, he began working as the principal of [XXX] School in Ottawa. He was the School principal at the time of the events in question. Mr. Lavergne testified that the Member was already a teacher at the School when he became the principal. At the time of the events in question, the Member taught [XXX] at the School.
Mr. Lavergne testified that on May 27, 2010, he discovered that the Member had been storing guns at the School and that the guns were made available to students. One of the School’s vice-principals brought a rifle to Mr. Lavergne’s office on May 27, 2010 and explained that she had found a student in the Member’s [XXX] class holding the rifle. The student had explained to the vice-principal that the Member had been teaching the class how to clean and handle guns. The students informed the vice-principal that there were more guns in the storage room, located below the auditorium where [XXX] classes were held.
Mr. Lavergne testified that, after learning that there were guns being stored in the School, he investigated the storage room with his chief custodian. The storage room contained many boxes, tool boxes, and [XXX] used for the [XXX] program. Mr. Lavergne testified that he found two or three handguns and several bags of bullets in one of the tool boxes. Mr. Lavergne indicated that he did not know whether the guns were real or fake, but he was shocked to find them in his School and he was very concerned for the safety of his students and staff. He further indicated that his School had a weapons policy in place that was printed in the student and staff handbooks. The policy clearly indicated that no weapons or replica weapons were permitted in the School at any time.
Once he discovered the weapons in the School, Mr. Lavergne locked the storage room using a key that only he and the chief custodian had access to and he called the police to report the incident. He also phoned the Manager of Safe Schools and the Superintendent of Instruction, who were his contacts for any “safe school” issues. When the police arrived at the School to conduct their investigation, they discovered many more guns in the storage room and a number of additional bags of ammunition. Mr. Lavergne explained that he was shocked and terrified at this discovery and that he was worried for both the safety of his students and staff and for the potential terror that could have ensued if anyone was seen walking around the School carrying one of these weapons.
Mr. Lavergne testified that the Member stopped teaching at the School after the guns and ammunition were discovered in 2010.
Mr. Lavergne further testified that approximately one and a half years after the initial gun incident, he discovered more guns and ammunition contained in a storage cabinet at the School. Mr. Lavergne again phoned the police, the Manager of Safe Schools and the Superintendent of Instruction to report this incident. The police returned to the School and confirmed that the storage cabinet contained handguns, live bullets and tins of grenade powder. The live bullets were particularly concerning because they were corroding and could have exploded at any time. The fact that they were stored next to tins of grenade power made a dangerous situation even more precarious. Mr. Lavergne had also found an instruction manual for one of the guns and the FedEx and Armory Invoices (Exhibit 4) in the Member’s name, which indicated that the Member had ordered the guns to be delivered to the School.
Testimony of Detective Christopher O’Brien
Detective Christopher O’Brien has been a police officer with the Ottawa Police Service since 2001. At the time of the events in question, he was an investigator with the guns and gangs unit. He currently works with the Ontario Provincial Police’s Provincial Weapons Enforcement Unit, which investigates the illegal movement of firearms, ammunition, and explosives.
Detective O’Brien testified that he was called into the School in May 2010 to investigate a firearms complaint and to determine if the guns at the School were real or replicas. Although there were already six police officers at the scene, Detective O’Brien was called in because the officers were having difficulty determining whether the guns were real or not and they required his expertise.
Detective O’Brien testified that there were 19 firearms found at the School in May 2010, of which 18 were either replicas or real guns that had been deactivated. One of the guns, however, was a real, functional weapon; it was a Russian rifle from World War II (“WW2 rifle”). The WW2 rifle was missing its bolt, but it was still a functional firearm that could have been discharged if the bolt were replaced.
Detective O’Brien explained that all of the firearms, whether they were real or replicas, looked like real guns. He further testified that there was one Israeli, Uzi-type submachine gun (the “Uzi”) that looked extremely realistic. He only noticed that the Uzi was deactivated when he took a closer look and saw that the barrel had been plugged. The magazine, however, was not deactivated and was therefore live. The magazine was prohibited by law because it was capable of holding 32 rounds of ammunition. According to Detective O’Brien, high capacity magazines (i.e. those with a capacity of more than 10 rounds of ammunition) are prohibited under Canadian law.
Detective O’Brien testified that replica guns are concerning because they can look very real. In this case, six police officers could not tell whether the guns were real or not. This is problematic because a police officer or a member of the public might see somebody carrying a replica gun and engage them, thinking that the firearm was real. Detective O’Brien explained that although possession (as opposed to importing, exporting, or trafficking) of replica weapons is legal, the presence of any weapon in schools is taken extremely seriously, particularly in the wake of the Columbine and Sandy Hook school shootings.
Detective O’Brien testified that, as part of his investigation, he checked whether the Member had properly registered the weapons he possessed. He found that the Member did not have a firearm licence and that the WW2 rifle was not registered, which was a legal requirement at the time. Given that the Member possessed two illegal weapons (the unregistered WW2 rifle and the high capacity Uzi magazine), Detective O’Brien ordered that the Member be arrested and transferred to a police holding facility.
The Member was charged but the matter never proceeded to a full criminal trial because the Member pled guilty to possession of a firearm without a licence, contrary to section 91(3) of the Criminal Code of Canada.
Detective O’Brien further testified that on January 25, 2012, a wheeled cabinet in a different room at the School was found to contain several more firearm replicas and some live ammunition. Although Detective O’Brien did not return to the School to conduct another investigation, he was notified of the discovery and was assigned to follow-up on the matter. After having reviewed the incident report, he had the weapons and ammunition destroyed.
SUBMISSIONS OF COLLEGE COUNSEL
College Counsel noted that although this was not a typical “guns and gangs” case, it was still highly concerning. In support of the allegations contained in the Notice of Hearing (Exhibit 1), College Counsel submitted the Brief of Court Documents (Exhibit 5), which contains transcripts from the Member’s criminal proceedings. The Member had legal representation at the criminal proceedings.
In the opinion of College Counsel, Justice Wake took a very practical and sensible approach to this case when it was before the Ontario Court of Justice. While the Member had submitted that there was never any malice intended by his actions and that he was simply trying to teach his students firearm safety, Justice Wake stated the following:
The difficulty, Sir is that that was not part of the scope of your duties at the school to teach your students firearm safety. There are people who can do that and I think it would be a source of concern for the parents of those students to learn of your mental health difficulties and the fact that you were instructing them on the safety of firearms. That having been said, I accept the fact that you were honorably employed as a teacher for many years, that this incident brought an end to your teaching career and that subsequently as evidenced by the reports that I have received from Dr. Green, your situation has rendered you in a condition where […] the problems that surfaced as a result of this incident are certainly not going to occur again and you are going to spend the balance of your life dealing with those problems. […] But some acknowledgement has to be made concerning the wrong headedness of what you did at that time and so that is why you were charged and that is why an entry will be made in which I grant you a conditional discharge and place you on probation for a period of 12 months (Exhibit 5, Tab 2, page 10-11).
College Counsel submitted that, although the criminal charges are important, even more pressing in this case is the fact that these very realistic weapons were made available to students and could have led to a disastrous situation. The Member put the safety of his students and colleagues at risk. If any of the Member’s students had taken one of the weapons off school property, someone might have mistaken the replicas for real guns and engaged the student, leading to potentially lethal consequences.
College Counsel submitted that there was ample evidence demonstrating that the Member’s weapons were kept at the school and made available to students. The Member’s conduct was certainly not in accordance with the standards to which teachers are held. According to College Counsel, there was a sufficient basis to justify a finding of professional misconduct under all the heads of misconduct alleged in the Notice of Hearing (Exhibit 1).
SUBMISSIONS OF MEMBER’S COUNSEL
Member’s Counsel, who was not yet retained on October 22, 2014 when the Committee heard the above evidence and submissions, did not object to the first day of hearings having taken place in the Member’s absence nor did she object to the Committee making a finding of professional misconduct. Counsel for the Member’s primary submission was that this hearing should be closed to the public.
According to Member’s Counsel, it is appropriate to close this hearing given the sensitive nature of the Member’s medical condition and the effect that the public disclosure of his medical history would have on the Member and his family. Member’s Counsel reviewed the Member’s medical history with the Committee in detail. Counsel for the Member acknowledged that the first day of hearings were not closed, but submitted that the remainder of the proceedings should be.
REPLY SUBMISSIONS OF COLLEGE COUNSEL
College Counsel did not object to the hearing being closed to the public insofar as it relates to the medical information of the Member. College Counsel submitted, however, that the portion of the hearing dealing with submissions on finding should be open to the public. Moreover, the results of the Committee’s deliberations and the ensuing penalty decision and order, if any, should also be accessible to the public. According to College Counsel, the public has heard about this case in the news and has an interest in its outcome. College Counsel further submitted that, at the time of the events in question, the Member was not incapacitated and was fit to teach, despite any medical or psychological issues from which he suffered.
College Counsel reminded the Committee of the distinction between holding a closed hearing and holding an open hearing where the Member’s name is not published. If the Committee orders that the Member’s name not be published, the decision remains a publicly accessible document, but the Member’s name would simply not be published in the College’s official magazine, Professionally Speaking/Pour parler profession. If, however, the Committee orders that the entire hearing be closed, the public would not have access to the Committee’s decision at all.
According to College Counsel, it would be appropriate to produce a decision that does not disclose the Member’s medical history, but it would be inappropriate to close the entire hearing, thus preventing the public from accessing the decision.
DECISION
The Committee orders that the portion of the hearing dealing with the detailed medical evidence and documents setting out the Member’s medical history be closed (but not the fact that the Member may have a mental or physical condition generally). The remainder of the hearing will be open.
Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Laird Arthur Evans committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(17), 1(18) and 1(19).
REASONS FOR DECISION
Regarding the issue of closing all or part of the hearing, the Committee has considered the submissions of both College Counsel and Member’s Counsel and has carefully reviewed the medical history of the Member. Given the sensitive nature of the Member’s medical history, the Committee has determined that the portions of the hearing dealing with the Member’s medical evidence and documentation shall be closed. The Committee notes that College Counsel did not take issue with closing the portions of the hearing that pertained to the Member’s medical history.
The Committee, however, did not accept the submission of Member’s Counsel that the entire proceeding should be closed. The Committee recognizes that there is a delicate balance to strike between protecting the privacy interests of the Member and ensuring the transparency of disciplinary hearings. The Committee further notes that the public has a significant interest in learning the outcome of this case as does the teaching profession, for which this decision will serve as a general deterrent. The particulars of this case are extremely serious. The Committee would be doing a disservice to the public and to the profession by not making this decision publicly accessible. The privacy interests of the Member are sufficiently protected by an order that the portions of this hearing pertaining to the Member’s medical history be closed.
In arriving at its decision that the Member is guilty of professional misconduct, the Committee has also carefully considered the evidence and the submissions of both parties. The Committee notes that Member’s Counsel had no objection to a finding of professional misconduct.
Rules 13.03 and 13.04 of the College Rules allow the Committee to accept a certified copy of a Court Information 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.
Having reviewed the certified copy of the Court Information contained in the Brief of Court Documents (Exhibit 5), the Committee accepts as fact that on July 29, 2011, the Member was found guilty of possession of a firearm without a licence, contrary to section 91(3) of the Criminal Code of Canada, which serves as proof that the Member committed the offence. The Member has not appealed the criminal conviction or sentence.
Pursuant to sub-rule 13.04(2) of the College Rules, the Committee also admits as incidental to the certified copy of the Court Information, the transcripts of the proceedings at which the conviction occurred, for the purpose of explaining the guilty conviction. The Committee notes that it heard from two credible witnesses who corroborated the version of the events contained in the Court transcripts.
The Committee also finds that the Member’s actions in this case were particularly egregious. Storing both real and replica weapons and ammunition in a school and making these weapons available to students jeopardized the safety of students, staff, and the community. The replica weapons, in this case, were extremely realistic and could have easily been mistaken for real weapons. Were a student to be seen carrying one of these weapons in the School’s hallways, it could have led to situation of panic and terror. Were a student to leave the school premises carrying one of these weapons, the student might have been engaged by police or members of the public, with potentially lethal consequences. The fact that the Member had stored live ammunition in the School, which was corroding and liable to explode at any time, was also of great concern to the Committee.
It is no excuse that the Member was attempting to teach students firearm safety in his [XXX] class. This was not within the scope of his duties. The Member displayed poor judgment and seriously jeopardized the safety of students, staff, and the community. The Member’s actions fell far below the standards to which members of the College are held.
The Committee finds that the facts support a finding of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(17), 1(18) and 1(19).
PENALTY SUBMISSIONS OF COLLEGE COUNSEL
College Counsel submitted that the appropriate penalty in this case would be to suspend the Member for a period of 6-12 months and to publish his name in the College’s official magazine, Professionally Speaking/Pour parler profession.
College Counsel indicated that the principles of general deterrence and the protection of the public were particularly relevant in this case. Given the Member’s medical condition, specific deterrence and rehabilitation are not significant concerns in this case since the Member is unlikely to ever be in a position to repeat the egregious conduct that gave rise to these proceedings.
College Counsel submitted that the Committee ought to consider both the aggravating and the mitigating factors that will have a bearing on their penalty decision. College Counsel highlighted a couple of aggravating factors. First, the conduct in this case was very serious. The Member was found to have brought weapons into the School and he made them accessible to students. Replicas or not, it is well-known that weapons have no place in our schools.
Second, the Member’s conduct put students, staff, and the community at risk. If someone had seen a student carrying one of these weapons, they might have engaged the student with potentially lethal consequences. The presence of these weapons in the School could have also led to a situation of panic and chaos. Clearly, the Member’s decision to bring weapons into the School was reprehensible.
College Counsel further submitted, however, that the Committee ought to consider the relevant mitigating factors. First, the Member did not intend to put students at risk. He had used these weapons for a number of years as part of his [XXX] program and this did not lead to any disastrous consequences. The decision to bring weapons into the School was certainly a bad one, but it was not malicious.
Second, the poor state of the Member’s health could be considered a mitigating factor. College Counsel noted, however, that the fact that the Member is currently in poor health should not lead to the conclusion that he should not receive a penalty for his conduct, which occurred while he was in better health.
With regards to suspension, College Counsel submitted that a 6-12 month suspension would be appropriate. Suspension serves as a general deterrent to the profession. The purpose of the suspension is to signal to the teaching profession that the Member’s conduct was inappropriate and carries significant consequences.
College Counsel acknowledged that there were few similar cases that could guide the Committee’s decision as to the appropriate length of the suspension, but presented Ontario College of Teachers v. Seymour, 2014 LNONCTD 61 (“Seymour”) as the only like case that dealt with replica weapons. College Counsel noted that Seymour was a more serious case in the sense that the member was found guilty of illegally smuggling weapons into Canada, but it was less serious than the case at hand because the weapons were not brought into a school and were not made available to students. College Counsel indicated that although there was only a two-month suspension ordered in Seymour, the Committee had indicated that if it were not for the joint submissions on penalty, it would have ordered a longer suspension. Given the facts of Mr. Evans’ case, College Counsel submitted that a 6-12 month suspension would be reasonable.
With regards to publication, College Counsel submitted that the Member’s name should be published in the College’s official magazine, Professionally Speaking/Pour parler profession. Publication with name serves as a general deterrent to the profession and is in the public interest. College Counsel submitted that since this case has already received significant publicity and media attention, there was no reason not to publish the Member’s name.
Finally, College Counsel submitted that, if the Committee were to impose a lesser penalty than that sought by the College due to the medical condition of the Member, the Committee ought to indicate what penalty it would have imposed if the Member were in good health. College Counsel suggested that this would serve as a helpful guide for those dealing with similar cases in the future.
PENALTY SUBMISSIONS OF MEMBER’S COUNSEL
Member’s Counsel submitted that, in light of the tragic circumstances regarding the Member’s health and the 2011 declaration that he is incapable of administering his own affairs, an appropriate outcome from these proceedings would be for the Member to resign from the College and to undertake not to re-apply at any time in the future. This outcome would satisfy the principles of general deterrence and protection of the public. Member’s Counsel took the position that, if the Member were to submit a signed resignation and undertaking not to re-apply to the College, there would be no issue of protecting the public from the Member and the Committee would not need to order any additional penalty.
Suspension, according to Counsel for the Member, was unnecessary in this case. The Member has already suffered immensely as a result of these proceedings and his criminal proceedings. To subject the Member to further punishment, when it is clear that he will not be returning to the profession, would simply add insult to injury.
Member’s Counsel took the position that Seymour was not an analogous case and should not be relied on when determining the appropriate penalty in this case. The Member was not illegally smuggling weapons into Canada, as was the case in Seymour. He was teaching his students gun safety. He had a military background. The weapons he used were almost all replicas. The WW2 rifle, which was a real weapon, had its bolt removed and could not be discharged without the bolt. According to Member’s Counsel, the Member clearly had no ill-intent, although his decision to bring guns into the School was ill-conceived.
Member’s Counsel further submitted that publication with name was not appropriate in this case. According to Member’s Counsel, the name of the Member adds nothing to the pool of information that the teaching profession needs to know. Some modicum of privacy should be respected in light of the Member’s 35 years of good service to the teaching profession and due to the state of the Member’s health. Member’s Counsel relied on Ontario College of Teachers v. Fabel, 2010 LNONCTD 20, Ontario College of Teachers v. Milsap, 2013 LNONCTD 52, and Ontario College of Teachers v. Blanchard, 2012 LNONCTD 17, in support of its position that the Member’s name should not be published in Professionally Speaking/Pour parler profession.
According to Member’s Counsel, this is an exceptional case due to the medical evidence that the Committee received. This is also a tragic case in that a successful 35-year teaching career came crashing down due to an exercise of poor judgment. Although the Member made a bad decision, he did not intend any harm. Member’s Counsel further submitted that the Member has been completely cooperative following the conduct that gave rise to these proceedings. He pled guilty to the criminal charges and he has not contested the findings in this disciplinary hearing. Member’s Counsel urged the Committee to consider these factors when deciding the appropriate penalty in this case.
PENALTY DECISION
The Committee makes the following order as to penalty:
The Registrar of the Ontario College of Teachers (the “Registrar”) is directed to suspend the Certificate of Qualification and Registration of the Member for a period of 12 months, from the date of this decision, and the fact of the suspension is to be recorded on the Register.
The findings and order of the Committee shall be published in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.
REASONS FOR PENALTY
The Committee has carefully considered the submissions and jurisprudence presented by both parties. The Committee also noted the current state of the Member’s health when coming to its determination. Nonetheless, the Committee finds that the penalty must be proportionate to the Member’s misconduct and notes that the Member was not in poor health at the time of the events that gave rise to these proceedings.
Pursuant to sections 30(4) and 30(5) of the Act, the Committee has limited powers with respect to penalty: the Committee may direct the Registrar to revoke or suspend a member’s certificate; it may direct the Registrar to impose specified terms, conditions or limitations on a member’s certificate; it may reprimand, admonish or counsel the member; it may impose a fine to be paid by the member; it may direct that the finding and the order be published with or without the name of the member in the College’s official publication; and, it may fix costs to be paid by the member to the College.
The Act does not give the Committee the power to direct that the Member resign from the College and undertake not to re-apply at any time in the future. The Committee notes that the outcome of its penalty decision may have been different if both parties had come to an agreement to this effect, before participating in a full hearing, but notes that no such compromise has been agreed to by the parties. It is not within the Committee’s bailiwick to impose an agreement of this sort on the parties. Accordingly, the Committee cannot accept the submission of Member’s Counsel that it would be appropriate, in this case, to have the Member sign a letter of resignation and undertake to never re-apply to the College. The parties have not agreed to this outcome and the Committee does not have the power to order it.
The Committee finds that a 12 month suspension is appropriate given the facts of this case. In formulating its decision, the Committee was cognizant that suspensions serve as a general deterrent to the profession. The Committee also carefully weighed the aggravating and mitigating factors particular to this case. While the Committee was not provided with a wealth of jurisprudence to guide its decision as to the duration of the suspension, the Committee finds that a substantial suspension is required given the serious nature of the misconduct in this case.
A 12 month suspension serves as a clear indication to the teaching profession that the College will not tolerate the conduct of teachers who jeopardize the safety of students, staff, and the community. The Committee regrets the current state of the Member’s health and recognizes that the Member may not have had ill-intentions when he committed the acts that gave rise to these proceedings; however, the Member’s conduct was egregious and it endangered his students and his colleagues. The Member stored weapons and ammunition on school property and made them available to students. The conduct of the Member was unacceptable and in conflict with the duty of a teacher to protect students. Although no significant harm was caused by the Member’s poor decisions, this does not excuse the Member’s conduct.
The Committee finds that it is appropriate to publish the Member’s name in the College’s official publication Professionally Speaking/Pour parler profession. The Committee appreciates that the Member has a privacy interest in not wanting his name published; however, this privacy interest must be weighed against the objectives of specific and general deterrence, rehabilitation, and protection of the public. Given the Member’s medical condition, rehabilitation and specific deterrence are not especially relevant since the Member is in no position to return to the teaching profession. Nonetheless, the principles of general deterrence and protection of the public are important.
Publication with name serves as a general deterrent as it informs the profession that such behaviour will not be tolerated and will result in significant penalties. It also serves as a general deterrent in that members typically would not want their colleagues to associate them with certain types of conduct. Publication with name serves the public interest by reassuring and informing the public that the College acts decisively when matters of this nature are brought to its attention.
The Committee also notes that given the publicity already surrounding this case and the fact that the decision, along with the Member’s name, will be readily accessible on the College’s website, there is no good reason not to publish the Member’s name in the College’s official publication. Although the Member may currently be suffering from health issues, he stored weapons at the School for many years and allowed his students to access them. The penalty in this case is proportionate to the Member’s misconduct.
The Committee is satisfied that the finding and penalty protect the public interest and uphold the standards of the teaching profession.
Dated: December 4, 2014
Robert Gagné Chair, Discipline Panel
Shanlee Linton, OCT Member, Discipline Panel
Wes Vickers, OCT Member, Discipline Panel