Ontario College of Teachers v Sanli, 2014 ONOCT 95

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Sanli, 2014 ONOCT 95

Date: 2014-10-21

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

Deren Ellis Sanli, 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 – )

) Anatoly Dvorkin,

) D2Law LLP,

) for Deren Ellis Sanli

DEREN ELLIS SANLI )

(CERTIFICATE #515040) ) 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 February 5, 2014 was served on Deren Ellis Sanli, requesting his attendance before the Discipline Committee of the Ontario College of Teachers on March 4, 2014 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 21, 2014.

The Member was in attendance at the hearing.

THE ALLEGATIONS

The allegations against Deren Ellis Sanli (the “Member”) in the Notice of Hearing are as follows:

IT IS ALLEGED that Deren Ellis Sanli is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) of the Ontario College of Teachers Act (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

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

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

(d) he failed to comply with the 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).

At the outset of the hearing, Counsel for the College requested the withdrawal of allegation (d) in the Notice of Hearing, namely subsection 1(15) of Ontario Regulation 437/97. The Committee granted this request, and this allegation was subsequently withdrawn.

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced an Agreed Statement of Facts and Guilty Plea (Exhibit 3), which provides as follows:

AGREED STATEMENT OF FACTS

1. At all material times, the Member, Deren Ellis Sanli (the “Member”) was a member of the Ontario College of Teachers (the “College”). Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. The Member began employment at the [XXX] (the “School”) in Marlborough, Massachusetts on August 24, 2008. He taught Grade [XXX] and Grade [XXX] [XXX] at the School until he was terminated on October 21, 2011, as a result of the conduct described below.

3. The Member voluntarily resigned his membership in the College and his Certificate of Qualification and Registration was cancelled, effective April 5, 2013.

The Conduct

4. During the 2011-2012 academic year, the Member taught Grade [XXX] [XXX] and was the [XXX] teacher to Grade [XXX] students at the School.

5. On October 19, 2011, some teachers overheard a group of students at the School talking about the Member having taken photographs underneath the skirts of female students in his classroom. School counselors spoke with the students and, based on the information they received, interviewed additional female students from the Member’s classes.

6. The female students, while wearing skirts, were asked by the Member to stand on chairs and desks to hang artwork high up on his classroom walls. No boys were ever asked to assist with this task. The female students informed the counselors that this behaviour made them feel uncomfortable.

7. When the female students stood on a chair to hang something up, the Member stood behind them, and held a camera down low and took a picture up their skirts. The Member took approximately forty (40) pictures of the female students’ underwear in this way.

8. On Friday, October 21, 2011, school administrators confronted the Member with the allegations. The Member admitted that he only asked female students wearing skirts to stay after school to hang pictures and acknowledged that he had taken pictures of the students from under their skirts.

9. The Member also told administrators that he attended counselling for anxiety, family issues and sexual problems with females, and explained that he was involved with a church that barred premarital sex. He stated that he had never touched any student.

10. The Member resigned from his position at the School. The administrators contacted the police.

Marlborough Police Department:

11. The Marlborough Police Department executed a search warrant at the Member’s home in Massachusetts on October 25, 2011 and seized a laptop computer. However, the hard drive had been removed. Police learned that the Member had returned to his parents’ home in Ontario, Canada.

Niagara Regional Police:

12. On October 26, 2011, the Marlborough Police Department contacted the Niagara Regional Police Service to request its assistance in the investigation. Police explained that the Member, a Canadian citizen, was a suspect in a voyeurism investigation and had fled to Canada with evidence of the offence (the computer hard drive). Niagara Regional Police attended the Member’s parents’ address that same day. The Member and his mother were at home, and police advised them they were following up on the Marlborough Police investigation. The Member turned his laptop over to the officers and explained that the pictures he took on his camera had been uploaded onto this laptop, not the one he left behind in Massachusetts. The Member advised police that he was in the process of seeking help at St. Joseph’s Healthcare in Hamilton.

Court Proceedings:

13. On October 31, 2012, the following criminal complaint against the Member was issued with the Trial Court of Massachusetts, District Court Department: that the Member “on 10/20/2011 did with offensive and disorderly acts or language accost or annoy one or more persons of the opposite sex, in violation of G.L. c.272, para.53.” Attached hereto and marked as Exhibit “B” is a copy of the Criminal Complaint filed with the Trial Court.

14. On March 20, 2013, the Member pleaded guilty to the offence listed on the face of the complaint above, and accepted that the reports filed in the matter were accurate and reflected the charge. The court found sufficient basis for the Member’s guilty plea. The judge convicted the Member and placed the case “on file” without imposing a sentence after accepting the Member’s guilty plea, for a period of three years. During that time, the case may be brought forward for sentencing should, for example, the Member commit a new criminal offence. At the conclusion of the three years, on March 17th, 2016, the file will disappear for sentencing purposes, however, the conviction remains. Attached hereto and marked as Exhibit “C” is a copy of the Criminal Docket with respect to the Member’s case. Attached hereto and marked as Exhibit “D” are copies of the reports filed with the Court which set out the facts admitted by the Member as the basis of the guilty plea. Attached hereto and marked as Exhibit “E” is a copy of a Transcript of the Court Proceeding, prepared from the CD copy of the in-court proceedings.

Diagnosis and Treatment:

15. Prior to the criminal complaint being laid, the Member voluntarily underwent a psychiatric assessment conducted by Dr. G. A. Chaimowitz, Head of Forensic Services, St. Joseph’s Healthcare, Hamilton. The Member met with Dr. Chaimowitz on four occasions between November 2011 and January 2012. According to Dr. Chaimowitz, the Member was a deeply religious and sexually naive man who had insight into his situation, and was extremely remorseful and ashamed of what he had done. Attached hereto and marked as Exhibit “F” is a copy of the Report of Dr. G.A. Chaimowitz, Head of Forensic Services, St. Joseph’s Healthcare, dated January 12, 2012.

16. The Member explained to Dr. Chaimowitz that he was exposed to female students in uniform (skirts) in his classroom and he began to get aroused by what he described as “upskirt” activities – the concept of being able to look at underwear and “the mystery of someone’s underwear”. He explained that his Grade [XXX] class had made ancient Greek shields and, over an approximate two week period, he asked the girls to get up on chairs to post the shields, while he walked behind them and took pictures of them with a concealed, point-and-shoot camera. He termed his behaviour a “cheap thrill” -- he knew it was wrong but he found the risk thrilling. He acknowledged that he was aroused by approximately forty (40) pictures of his female students on his computer.

17. The Member stated that he has no interest in children, nor has he ever touched a girl. He explained that although the photographs he took at the School were of [XXX] and [XXX] year old girls, the crime was one of opportunity, and he was and is cognizant that it is wrong and illegal. He acknowledged that he was still aroused by the idea of “upskirt” activities and should not be in a classroom setting.

18. Dr. Chaimowitz concluded that the Member’s recognition of the extent and wrongfulness of his behaviours, and his desire to address and treat them, “augers well for reducing the risk of future illegal and inappropriate actions”.

19. The Member also attended twenty-five individual cognitive behavioural therapy sessions with a clinical forensic psychologist who reported the following on December 31, 2012:

[The Member] has made significant gains in addressing the factors identified as contributing to inappropriate sexual behaviour. He has demonstrated a firm commitment to managing factors so as to diminish any threat of engaging in such behaviour in the future. His symptoms and behaviours are not consistent with any diagnosable psychological disorder, including a sexual disorder or paraphilia… [emphasis in original]

[The Member] has no history of violent or sexual offending. According to interviews and the pre-treatment assessment, there is no evidence of paraphilia, and his sexual preference is for consenting, adult, heterosexual contact.

Attached hereto and marked as Exhibit “G” is a copy of the Report of Dr. Heather Moulden, C. Psych., Psychologist, dated December 31, 2012.

20. In a follow-up report dated February 18, 2014, the clinical forensic psychologist reiterated that the Member’s “symptoms and behaviours are not consistent with any diagnosable psychological disorder, including a sexual disorder or paraphilia”:

[The Member] took full responsibility for his offending, has addressed the issues which contributed to his criminal behaviour in evidence-based sex offender treatment, and this is reflected in the current risk assessment. His risk for general and violent reoffence is low, and his risk for sexual reoffence is low-moderate…With respect to recommendations, no further psychological treatment is recommended at this time.”

Attached hereto and marked as Exhibit “H” is a copy of the Report of Dr. Heather Moulden, C. Psych., Psychologist, dated February 18, 2014.

21. Prior to the Member’s misconduct, described above, the Member had never been charged with any criminal offences and had never been investigated or disciplined by the College. The Member has no history of violent or sexual offending.

22. The Member has established himself in a new career and is now married.

GUILTY PLEA

23. By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1-22 above (the “Admitted Facts”).

24. The Member hereby acknowledges that the Admitted Facts, referred to above, 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(7.2), 1(7.3), 1(16), 1(17), 1(18), and 1(19). The Member also admits that he engaged in sexual abuse of a student(s) of a nature defined in Sections 1 and 40(1.1) of the Act.

25. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) he understands that by pleading guilty to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;

(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(e) he understands that any agreement between his counsel and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

(f) he understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

26. In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Deren Ellis Sanli committed acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(16), 1(17), 1(18), and 1(19). The Committee further finds that the Member engaged in sexual abuse of students of a nature defined in Sections 1 and 40(1.1) of the Act.

REASONS FOR DECISION

The Committee accepts the Member’s admission of the truth of the facts and exhibits referred to in paragraphs 1 to 22 above (the “Admitted Facts”). The Member acknowledged that the Admitted Facts constitute conduct which is professional misconduct, and pleaded guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(16), 1(17), 1(18), and 1(19) and that he engaged in sexual abuse of students of a nature defined in Sections 1 and 40(1.1) of the Act.

The Committee accepted the Member’s guilty plea and accepts that the facts in the Agreed Statement of Facts and Guilty Plea (Exhibit 3) amount to professional misconduct as pleaded to by the Member.

On March 20, 2013 the Member pleaded guilty that he “on 10/20/2011 did with offensive and disorderly acts or language accost or annoy one or more persons of the opposite sex, in violation of G.L. c.272, para.53.”

The law of evidence and Rules 13.03 and 13.04 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee of the Ontario College of Teachers allow the Committee to accept a certificate of conviction as proof that an offence was committed by a person, where there is a finding of guilt and conviction in a Canadian court, provided that there is no evidence to the contrary and that no appeal has been granted.

The Member acknowledged that he asked female students wearing skirts to stay after school to hang pictures and acknowledged that he had taken pictures of the students from under their skirts. He termed his behaviour a “cheap thrill” – he knew it was wrong but he found the risk thrilling. He acknowledged that he was aroused by approximately forty (40) pictures of his female students on his computer. He also acknowledged that he was still aroused by the idea of “upskirt” activities and should not be in a classroom setting.

The Committee finds that the Member’s conduct and his criminal conviction constitute acts of professional misconduct as alleged, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(7.3), 1(16), 1(17), 1(18), and 1(19); and that he engaged in sexual abuse of students of a nature defined in Sections 1 and 40(1.1) of the Act.

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty document (Exhibit 4), College Counsel and the Member jointly submitted that the appropriate penalty to be imposed by the Committee in this matter would be that the Registrar of the Ontario College of Teachers be directed to revoke the Certificate and Qualification and Registration of the Member, with publication of the findings and Order of the Committee in summary form in the official publication of the College, Professionally Speaking/Pour parler profession. The parties had not agreed on whether or not the Member’s name should be included and submissions were made on that issue.

PENALTY SUBMISSIONS RE: PUBLICATION

Submissions of College counsel

Counsel for the College submitted that the name of the Member should be published in Professionally Speaking/Pour parler profession. Publication with name ensures that the public interest is satisfied and acts as specific and general deterrence. Publication with name conveys the serious nature of the allegations and ensures transparency in the disciplinary process. Counsel stated that the public and the profession have a right to know as much information as possible regarding this Member’s misconduct, including his name. It was the College’s position that publishing the Member’s name is in keeping with the openness, transparency and accountability of Discipline Committee proceedings. College Counsel stated that the College does not shield its members from public scrutiny when they commit professional misconduct. Transparency and accountability go to the heart of the College’s mandate to serve and protect the public interest.

Submissions of Member’s Counsel

Counsel for the Member submitted that the Member’s name should not be published in the College’s publication Professionally Speaking/Pour parler profession. Counsel noted that the Member has been very co-operative in both the criminal and the College proceedings. Counsel submitted that there were three main categories for mitigating factors for non-publication of name; the Member had no record of prior misconduct, was remorseful, and was pro-active in seeking treatment for his behaviour. Counsel stated that the Member is now in a new career, has since married and that publication of his name might potentially hamper the Member in his new career. Counsel asked the Committee to weigh the impact this would have on the Member in moving forward as publishing with name would not add any further value; it would only shame the Member and not have any rehabilitative effect. Counsel concluded that the principles of the sentencing: specific and general deterrence, public protection and rehabilitation, can be achieved without publishing the Member’s name.

PENALTY DECISION

The Committee makes the following order as to penalty:

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

2. There shall be publication of the findings and order of the Committee, in summary form, with the name of the Member in the official publication of the College Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY

The Member acknowledged that the uncontested facts constitute conduct which is professional misconduct and agreed that revocation is the appropriate penalty. The Committee agrees that revocation is an appropriate penalty in these circumstances.

The Member, by his own admission agrees that he should not be in a classroom setting. He abused his position of trust and authority by taking pictures of female students under their skirts for his own “cheap thrills.” The Member has been criminally convicted and sentenced for his misconduct. He has forfeited the privilege of being a teacher in Ontario and no longer holds a teaching licence in the state of Massachusetts.

The Member’s conduct was unacceptable, disgraceful and illustrated an abuse of power and trust. Revocation and publication with name are the appropriate penalties for misconduct of this nature.

The Committee determines that publication with name acts as a specific deterrent to this Member should he choose to seek reinstatement in the future. Publication with name serves as a general deterrent to the profession that engaging in similar conduct will result in the harshest of penalties. Publication further informs the public, both in the present and in the future, that the College does not tolerate such conduct. The Committee finds that publication with name promotes transparency, restores public confidence in the profession and reaffirms the College’s commitment to its mandate to protect the public interest. These findings, in the circumstances of this case, outweigh the mitigating factors submitted by the Member’s counsel.

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

Dated: October 21, 2014

______________________________ Alexander (Sandy) Bass, OCT

Chair, Discipline Panel ______________________________ Shanlee Linton, OCT Member, Discipline Panel

Pauline Smart

Member, Discipline Panel