Ontario College of Teachers v Kilby, 2014 ONOCT 54

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Kilby, 2014 ONOCT 54

Date: 2014-10-21

IN THE MATTER OF the Ontario College of Teachers Act, 1996 (the “Act”), and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Steve Richard Kilby, a member of the Ontario College of Teachers

PANEL: Alexander (Sandy) Bass, OCT, Chair Shanlee Linton, OCT

Pauline Smart

BETWEEN: ) ) Ava Arbuck,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Law Clerk

• and – )

) ) Steve Richard Kilby,

STEVE RICHARD KILBY ) was not present or represented

(CERTIFICATE # 419665) )

) Erica Richler,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: October 21, 2014

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 21, 2014 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing (Exhibit 1) dated April 17, 2014 was served on Steve Richard Kilby (the “Member”), requesting his attendance before the Discipline Committee on May 12, 2014 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 21, 2014.

The Member was not in attendance at the hearing or represented by counsel.

Counsel for the College submitted an Affidavit of Daniela De Bartolo, sworn October 15, 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. De Bartolo, a law clerk with McCarthy Tétrault, outlines her communications with the Member and provides proof of proper service of all required disclosure documents. On April 23, 2014, the Member confirmed his address and advised College Counsel that he had no intention of attending the proceedings before the Discipline Committee. (Exhibit 2, Tab A).

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 aware of the time and date of the hearing and the penalty being sought.

The Committee therefore proceeded to hear the matter in the absence of the Member.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing dated April 17, 2014 are as follows:

IT IS ALLEGED that Steve Richard Kilby is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) 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 abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student as defined in section 1 of the Act;

(d) 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);

(e) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(f) he contravened a law, the contravention of which may cause a student to be put at or to remain at risk, contrary to Ontario Regulation 437/97, subsection 1(17);

(g) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

(h) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Steve Richard Kilby is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Simcoe County District School Board as a teacher at [XXX] School (the “School”), where he taught Grades [XXX] and [XXX].

3. During the 2007-2008 academic year, the Member was the Grade [XXX] teacher of a female student (“the Student”) at the School. During the 2009-2010 and 2010-2011 academic years, the Student was a member of [XXX] by the Member.

4. In June 2012, when the Student was [XXX] years old and had completed Grade [XXX], the Member became the Student’s [XXX].

5. For one week in July 2012, the Member allowed the Student to live in his home.

6. During July and August 2012, the Member engaged in a personal and sexual relationship with the Student.

7. On August 28, 2013, the Member was found guilty of sexual interference, contrary to section 151(a) of the Criminal Code of Canada.

8. The Member was sentenced to 54 days incarceration plus three (3) years of probation with terms, including a term that prohibits the Member from working with and/or volunteering in a capacity that involves being in a position of trust or authority towards persons under the age of 18.

PUBLICATION BAN

A non-publication order (Exhibit 4, Tab A) was issued under subsection 486.4 of the Criminal Code (Canada), in the proceedings in the Ontario Court of Justice. The Committee is therefore required to uphold this publication ban imposed in the matter of Her Majesty the Queen v. Steve Richard Kilby in the Ontario Court of Justice. There shall be no publication of any information that might tend to identify the victim involved in this matter.

MEMBER’S PLEA

As the Member was not 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

College Counsel entered into evidence the Registered Member Information for Steve Richard Kilby (Exhibit 3), which indicates that the Member was registered with the College during the period of the alleged events. Counsel for the College also provided the Committee with a Brief of Court Documents: Her Majesty The Queen v. Steve Richard Kilby (Exhibit 4) which contained the following documents:

TAB

DOCUMENT

Date

A.

Certified Copy of Information

Oct 16, 2012

B.

Certified Copy of Intermittent Probation Order

Aug 28, 2013

C.

Certified Copy of Probation Order

Aug 28, 2013

D.

Transcript of Reasons and Sentencing before Justice C.M. Harpur at Barrie, Ontario

Aug 28, 2013

E.

Transcript of Reasons and Sentencing before Justice C.M. Harpur at Barrie, Ontario

Aug 28, 2013

The evidence presented in the Brief of Court Documents (Exhibit 4) confirms that on or about August 28, 2013, the Member was found guilty of sexual interference, contrary to section 151(a) of the Criminal Code of Canada. On August 28, 2013, the Member was sentenced to 54 days incarceration plus three (3) years of probation with terms, including a term that prohibits the Member from working with and/or volunteering in a capacity that involves being in a position of trust or authority towards persons under the age of 18. The Member was also fined $750.00.

SUBMISSIONS ON FINDING

College Counsel submitted the Brief of Court Documents (Exhibit 4) in support of the allegations in the Notice of Hearing. The Member was represented by counsel in the criminal proceedings.

College Counsel advised the Committee that they could rely on the court documents, which included the criminal conviction, as proof that the offence had been committed and there was no evidence to the contrary. Further the Member has not appealed the conviction or the sentence. College Counsel stated that the Member’s behaviour as detailed in the record of the criminal proceedings and the resultant criminal conviction provided a sufficient basis to justify a finding of professional misconduct under all the heads of misconduct alleged in the Notice of Hearing.

DECISION

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 Steve Richard Kilby committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19). The Committee further finds that the Member engaged in sexual abuse of a student of a nature defined in Sections 1 and 40(1.1) of the Act.

REASONS FOR DECISION

Given the information provided in the Brief of Court Documents (Exhibit 4), the Committee accepts as fact that on August 28, 2013, the Member was convicted of sexual interference and was sentenced to 54 days incarceration plus three (3) years of probation. The Member has not appealed the criminal conviction or sentence.

The law of evidence and Rules 13.03 and 13.04 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee allow the Committee to accept a certificate of conviction as proof that an offence was committed by a person, where there is a finding of guilt and conviction in a Canadian court, provided that there is no evidence to the contrary and the Member has not appealed the conviction or sentence.

The Committee finds that the Member’s actions and subsequent criminal conviction for sexual interference constitute acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(15), 1(16), 1(17), 1(18) and 1(19). The Committee further finds that the Member engaged in sexual abuse of a student of a nature defined in Sections 1 and 40(1.1) of the Act.

SUBMISSIONS ON PENALTY

College Counsel submitted that the Member abused his position of trust and authority and took advantage of a vulnerable student and took her into his own home. Counsel stated that the Member lied to the Student’s mother when being confronted about the relationship. Counsel stated that the Member assured the mother that he was “only there to help the daughter.” Notwithstanding this confrontation with the Student’s mother, the Member continued the inappropriate relationship with the Student. Counsel submitted that the student was put in the Member’s care by her family and the Children’s Aid Society due in part to the Member being in a position of trust, having been the Student’s teacher and [XXX]. The Member abused this position of trust to advance a sexual relationship and take advantage of her.

College Counsel submitted that the Member’s actions have brought the profession into disrepute and in these circumstances, the only appropriate penalty is to revoke the Certificate of Qualification and Registration of the Member and to publish his name in the summary of the Committee’s findings in the College’s official magazine, Professionally Speaking/Pour parler profession.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Committee directs the Registrar to revoke the Certificate of Qualification and Registration of the Member; and

2. 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 Member abused the authority and trust vested in him in his role as a teacher to take advantage of and engage in sexual abuse of a student. He pleaded guilty to the charge of sexual interference, contrary to subsection 151(a) of the Criminal Code of Canada. The Committee agrees with Justice Harpur in his Reasons for Sentencing (Exhibit 4, Tab E, page 2, lines 1 to 6), who stated, “as an educator and as an example for young people, as well as an intelligent man with a family, Mr. Kilby, perhaps more than most, should have been alive to the perils of involving [the Student] in a relationship which was well beyond her depth at the age of [XXX]”.

The Member’s behaviour has brought the profession into disrepute and was in conflict with the duty of a teacher to protect students. The Member, as a result of his conduct, has forfeited the privilege of holding a teaching certificate and being a member of the teaching profession. This egregious misconduct requires that the Member receive the maximum penalty, revocation of his certificate of qualification and registration.

Publication of the findings and order of the Committee, in summary, with the name of the Member, identifies to the profession the nature of the Member’s misconduct and the consequences for such behaviour. Publication, in this case, acts as a general deterrent and informs the profession that such behaviour will not be tolerated and will result in the harshest penalty, revocation. Publication serves the public interest by reassuring and informing the community that the profession acts decisively when matters of this nature are brought to its attention.

The Committee is satisfied that the finding and penalty protect the public interest and uphold the standards of the teaching profession.

Dated: October 21, 2014

______________________________ Alexander (Sandy) Bass, OCT

Chair, Discipline Panel ______________________________ Shanlee Linton Member, Discipline Panel

Pauline Smart

Member, Discipline Panel