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
James Allan Biss, a member of the Ontario College of Teachers.
PANEL: Monika Ferenczy, OCT, Chair Jean-Luc Bernard, OCT
Ruth Ann Penny
BETWEEN: ) ) David Leonard,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Annie Lacroix,
) Litigation Paraprofessional
- and – )
) James Allan Biss, ) on his own behalf
JAMES ALLAN BISS )
(CERTIFICATE #463213) )
) Paul Marshall,
) Emond Harnden LLP, ) Independent Legal Counsel ) ) Heard: December 17, 2013
DECISION, REASONS FOR DECISION AND ORDERS
This matter was scheduled for hearing before a panel of the Discipline Committee (the “Committee”) on December 17, 2013 at the Ontario College of Teachers (the “College”) at Toronto.
The Member was not in attendance at the hearing, nor represented by legal counsel.
A Notice of Hearing (Exhibit 1), dated August 1, 2013 was served on James Allan Biss, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on September 13, 2013 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for December 17, 2013.
THE ALLEGATIONS
The allegations against James Allan Biss (the “Member”) in the Notice of Hearing are as follows:
IT IS ALLEGED that James Allan Biss 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 or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
(c) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;
(d) he failed to comply with the 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);
(h) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PUBLICATION BAN
A non-publication order (Exhibit 5, 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. James Alan Biss by the Ontario Court of Justice. There shall be no publication of any information that might tend to identify the victim or witnesses involved in this matter.
College Counsel advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 4), which provides as follows:
AGREED STATEMENT OF FACTS
James Allan Biss (the “Member”) is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
In the academic years 2009-2010 and 2010-2011, the Member was employed by the Peel District School Board as a secondary school teacher. In the summer of 2010, the Member was also employed by the Toronto Catholic District School Board.
At the material time, Student “A”, a [XXX] year-old female, was a student at the school where the Member taught. In or around February 2010, Student “A” and the Member began to correspond electronically, and developed an inappropriate personal relationship.
In the year 2010, the Member:
(a) engaged in an exchange of personal e-mail with Student “A”;
(b) took Student “A” to a shopping mall in Toronto and bought her a dress and shoes;
(c) exchanged text messages with Student “A”, including messages of a sexual nature;
(d) allowed Student “A” to stay in his hotel room in [XXX];
(e) engaged in a sexual relationship with Student “A”.
In or around October 2010, the Member was diagnosed with Bipolar II Disorder. Attached hereto and marked as Exhibit “B” is a copy of a letter by psychiatrist Dr. Domenic Dimanno, dated November 5, 2013.
On or around February 24, 2011, the Member was arrested by the Peel Regional Police and charged with sexual exploitation and sexual assault, with respect to this relationship with Student “A”. The criminal trial of this matter proceeded on June 6, 2012, at which time the Member entered a guilty plea, with respect to the charge of sexual exploitation. The sexual assault charge was withdrawn by the Crown. On September 27, 2012, the Member was sentenced to 14 months’ imprisonment and three years’ probation.
GUILTY PLEA
By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1-6 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and admits the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15), 1(16), 1(17), 1(18), and 1(19).
The Member denies that he breached subsections 1(7.2) and 1(7.3) of Ontario Regulation 437/97. Further, the Member denies that he engaged in sexual abuse of a student of a nature defined in Sections 1 and 40(1.1) of the Act.
By this document the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;
(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;
(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;
(e) he understands that any agreement between him and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;
(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and without the advice of legal counsel.
- In light of the admitted facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that James Allan Biss 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). Further, the Committee 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
The Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 6 above (the “Admitted Facts”). He acknowledged that the Admitted Facts constitute professional misconduct and pleaded guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(16), 1(17), 1(18) and 1(19).
The Committee accepted the Member’s guilty plea and the facts in the Agreed Statement of Facts, and Guilty Plea. The conduct of the Member with a student included engaging in an exchange of personal e-mail with the student, taking the student shopping and purchasing a dress and shoes for her, exchanging text messages with the student including messages of a sexual nature, allowing the student to stay in his hotel room in [XXX] and finally engaging in a sexual relationship with the student. The member was found criminally responsible for his conduct and incarcerated. The committee accepted that court documents provided, as supporting the College’s onus to demonstrate burden of proof.
The Committee finds that based on the Member’s aforementioned conduct, he committed acts of professional misconduct, 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). Further, the Committee 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.
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 6), College Counsel and the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee directs the Registrar to revoke the Certificate of Qualification of the Member. The parties had not agreed on whether or not the Member’s name should be published and made submissions on that issue.
SUBMISSIONS ON PUBLICATION
College counsel submitted that publication with name was appropriate given the nature of the misconduct. College counsel outlined the vulnerability of the student, stating that the incidents occurred during a time of [XXX] for the student and that she was in a psychologically and emotionally vulnerable state. Publication with name is necessary to act as a general and specific deterrent, as the emotional and psychological harm done to the student in such a situation warranted protection of other students and the public from this type of conduct and this particular member. Given that the Member has a criminal conviction and information regarding those proceedings is already in the public domain with the publication of his name, transparency and consistency is obtained through publication of name in these proceedings.
PENALTY DECISION
a) The Registrar of the Ontario College of Teachers is directed to revoke the Certificate of Qualification and Registration of the Member; and
b) There shall be publication of the findings and order of the Committee, in summary form, with the name of the Member, in the official publication of the College Professionally Speaking/Pour parler profession.
REASONS FOR PENALTY DECISION
The Committee carefully considered and accepted the joint submission on penalty. The gravity of the Member’s conduct warranted revocation and publication of the Member’s name in order to act as a general and specific deterrent. Conduct of a sexual nature involving a student represents the most heinous breach of trust from a person in a position of trust and authority over a student. The Member demonstrated complete lack of care and safety for the student in imposing a relationship of a sexual nature that could leave psychological and emotional scars for life on the student.
Revocation and publication of the name of the Member warns members of the profession that such misconduct results in the forfeiture of their membership in the profession. The committee protects the public interest by revoking the member’s right to be in such a position of trust with students ever again and publication of the Member’s name informs the public about this particular Member.
Dated: February 13, 2014
Monika Ferenczy, OCT Chair, Discipline Panel
Jean-Luc Bernard, OCT Member, Discipline Panel
Ruth Ann Penny, OCT Member, Discipline Panel