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 Robert James Harkes, a member of the Ontario College of Teachers.
PANEL: Wes Vickers, OCT, Chair Jane Ishibashi Stéphane Vallée, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS David Leonard, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk
– and –
ROBERT JAMES HARKES (CERTIFICATE #170236) Vaino Poysa, Ontario Secondary School Teachers’ Federation, for Robert James Harkes
Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: November 11, 2015
DECISION, REASONS FOR DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 11, 2015 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing dated June 16, 2014 (Exhibit 1) was served on Robert James Harkes (the “Member”), requesting his presence on July 3, 2014 to set a date for hearing, and specifying the charges. The hearing was subsequently set for November 11, 2015.
The Member was in attendance for the hearing and had legal representation.
THE ALLEGATIONS
The allegations against the Member in the Notice of Hearing are as follows:
IT IS ALLEGED that the Member 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 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 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;
(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, including section 264 (1)(c) or the regulations made thereunder, contrary to Ontario Regulation 437/97, subsection 1(15);
(f) 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
(g) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
AGREED STATEMENT OF FACTS
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 2), which provides the following:
Robert James Harkes was at all material times, a member of the Ontario College of Teachers. Attached to Exhibit 2 at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed by the Durham District School Board (the “Board”) as a teacher at [XXX] School (the “School”) in Oshawa, Ontario.
During the 2012-2013 academic year, the Member was a [XXX] teacher at the School.
The Member yelled at Student 1, a male student in his class, about cleaning up the shop. Student 1 yelled back at the Member and during the discussion, the Member screamed loudly and kicked a metal stool.
The Member allowed students who were not registered in the class and former students to make social visits to the classroom during class time.
The Member allowed these students to circulate in the class and talk to friends. Also, the Member talked to these students for periods of time, during class time.
The Member provided his cell phone number to a female student to contact him about a purchase and pricing related item to a classroom purchase. Furthermore, the Member let students in his class use his cell phone to price materials for design/build projects.
During class time, on occasion, the Member made gestures towards female students which were perceived as inappropriate, specifically:
(a) while a student was putting something on a shelf, he would stand close behind her to ensure that nothing fell, as he did so he pulled up his own pants;
(b) while holding a paint brush in his hand, he would stand behind students’ backs and imitate their painting .
The Member made a comment to Student 2, a male student in his class, that he needed to shave before going through customs so that he did not get “hassled” at the Border.
The Member, on more than one occasion, made an offensive racial remark about the Vice-Principal of the School. He referred to the Vice-Principal as “Kunta” which refers to a slave character in the movie Roots.
The Member asked what he would need to do to get a student’s attention, “punch him in the face?”
The Member commented about a female student’s breast being exposed and told her that she needed to be careful in the event that sparks from the metal being grinded fell on her breasts. The discussion about the student’s breasts made other students uncomfortable in the class.
The Member told Student 4, a female student in his class, “you look pretty when you smile” and told her that he shouldn’t say that in front of her boyfriend because he might get jealous.
Student 5, a male student in his class, picked up a model of a candle holder to get some ideas for a project. The Member got upset at Student 5 and yelled at him to put down the model candle holder. Student 5 was very surprised at the Member’s reaction and put it down.
The Member made gestures towards female students, including Student 6, requesting hugs.
On an occasion, the Member yelled at Student 6 to go to the office because she had taken some time to change her shoes. Student 6 complied with the request to go to the office and the Member continued to yell at her and walked towards her. Student 6 felt that the Member invaded her personal space. She became upset and told the Member to shut up.
Furthermore, during the 2012-2013 academic year, the Member had physical contact with female students in that he:
(a) pulled down their welding jackets if their midriff was showing (for safety reasons);
(b) hugged them;
(c) encouraged Student 7, a former female student, to kiss him on the cheek in jest when she visited the class. The student did not do so.
- The Member retired from the Board on or about December 31, 2013.
GUILTY PLEA
By this document, the Member admits the truth of the facts and exhibits referred to in paragraphs 1 to 18 above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19).
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 otherwise 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 the parties with respect to the penalty proposed 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.
- 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
Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (d) of the Notice of Hearing, namely that the Member contravened subsection 1(7.3) of Ontario Regulation 437/97, be withdrawn. The Committee granted the request.
Having considered the Agreed Statement of Facts and Guilty Plea, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member committed acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 18 of the Agreed Statement of Facts and Guilty Plea and pleaded guilty to the allegations of professional misconduct against him. He acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7.1), 1(7.2), 1(15), 1(18) and 1(19).
Paragraphs 4 through 17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).
Paragraph 17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1).
Paragraphs 4, 8, 9, 11, 12, 13, 14, 15, 16 and 17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2).
Paragraphs 4 through 17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, including section 264 (1)(c) or the regulations made thereunder, contrary to Ontario Regulation 437/97, subsection 1(15).
Paragraphs 4 through 17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member 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).
Paragraphs 4 through 17 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
JOINT SUBMISSION ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and Counsel for the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:
direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
direct the Registrar to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register until such time as they are fulfilled:
(a) prior to commencing or returning to a teaching position or any other position for which a Certificate of Qualification and Registration (collectively referred to as a “Teaching Position”) is required, the Member shall enrol in and successfully complete at his own expense, courses of instruction pre-approved by the Registrar regarding boundaries and boundary violation issues and regarding anger management, subject to the following conditions:
(i) the Member will provide to the course provider approved by the Registrar, a copy of the Agreed Statement of Facts and Guilty Plea and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision, Reasons for Decision and Order of the Discipline Committee;
(ii) upon review of the documents noted at paragraph (i) above, the course provider will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course provider shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;
(b) within 30 days of his completion of the courses outlined in (a) above, and prior to commencing or returning to a Teaching Position, the Member shall provide to the Registrar a written report from the course provider which:
(i) confirms that the Member has successfully completed the course and reports on the progress of the Member with respect to addressing the outlined goals of the course.
- direct that there be publication of the finding and order of the Committee in summary form, in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed to whether or not the Member’s name should be included and submissions will be made on that issue.
SUBMISSIONS ON PUBLICATION
Submissions of College Counsel
College Counsel submitted that publication with the name of the Member is warranted in this case. Publication with the name of the Member serves as a specific deterrent to the Member and as a general deterrent to the profession. College Counsel added that the Committee’s denunciation of the Member’s conduct through the publication of his name demonstrates to the public that acts of professional misconduct attract serious consequences. Moreover, publication with the Member’s name is important, according to College Counsel, because it informs the public and other members of the profession that matters before the Committee are resolved in an open and transparent manner.
In support of this position, College Counsel referred the Committee to two cases: Ontario College of Teachers v. Graham (7 October 2015) and Ontario College of Teachers v. Hockin, 2015 LNONCTD 26. College Counsel submitted that although these cases were not directly on point, they dealt with similar facts involving the use of inappropriate language and racial remarks with students and, in both cases, publication with name was ordered.
Submissions of Member’s Counsel
Counsel for the Member submitted that publication with the name of the Member is not warranted in this case and noted that the Committee has the discretion to order publication with or without the name of the Member.
Member’s Counsel submitted that, through the Joint Submission on Penalty, the Member accepts responsibility for and regrets his actions. Member’s Counsel added that publication with name is unnecessary to achieve the transparency objectives described by College Counsel, which are already met through this open hearing process and through the publication of decisions including members’ names on the College website. Member’s Counsel noted that these decisions are also publicly available in the College library and on Quicklaw. If the Member’s name were to be published in Professionally Speaking/pour parler profession, it would merely embarrass the Member with his former colleagues and would serve no useful purpose.
Member’s Counsel urged the Committee to consider the following mitigating circumstances: the Member has been retired from the profession since 2013 and therefore poses no risk of reoffending; the incidents occurred at the end of a twenty-five year teaching career; the Member has not previously appeared before the Committee; and, the Member has co-operated with the College and by proceeding on agreement, he has conserved judicial resources and has prevented students from having to testify.
Member’s Counsel submitted that the cases presented by College Counsel were distinguishable on their facts, as they dealt with elementary school students and involved demeaning and disparaging comments by teachers, and they resulted in investigations and suspensions which did not occur in the Member’s case. Furthermore, in both of the cases presented by College Counsel, the members had not retired and continued to teach.
Member’s Counsel urged the Committee to rely on the following four cases in which publication with name was not ordered: Ontario College of Teachers v. Mukts, 2013 LNONCTD 98; Ontario College of Teachers v. Brooks, 2015 LNONCTD 46; Ontario College of Teachers v. Shuber, 2015 LNONCTD 6; and, Ontario College of Teachers v. De Marchi, 2011 LNONCTD 5. Member’s Counsel submitted that the members’ conduct in these four cases was more serious than that of the Member, but the members’ names were not published in any of the four cases.
Reply Submissions of College Counsel
In reply, College Counsel submitted that if transparency interests were served merely by the fact that hearings are open to the public, and that decisions are published with the Member’s name on the College’s website and are available in the College library and on Quicklaw, then members’ names would never be published in the College’s official publication. College Counsel insisted that publishing the Member’s name in Professionally Speaking/Pour parler profession serves as an important specific and general deterrent that should not be overlooked.
PENALTY DECISION
The Committee accepts the Joint Submission on Penalty presented by the parties and makes an order in accordance with its terms, as set out above. With respect to the issue of publication, the Committee directs that there be publication of a summary of the finding and order of the Committee in the official publication of the College, Professionally Speaking/Pour parler profession, with the name of the Member.
REASONS FOR PENALTY DECISION
The Committee accepts the penalty jointly proposed by the parties. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of justice or the discipline process into disrepute. The Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the circumstances of this case.
The Committee finds that the Member’s misconduct warrants a reprimand. The reprimand will serve as a specific deterrent and will allow the College to address its concerns with the Member. Additionally, recording the fact of the reprimand on the Register also serves as a general deterrent as it informs other members of the teaching profession of the consequences for engaging in professional misconduct.
The Committee finds that the courses of instruction regarding boundaries and boundary violation issues and anger management will assist the Member, in the event of his return to teaching, to better communicate with his students in an appropriate and more sensitive manner.
The Committee finds that publication with the name of the Member is justified given the serious nature of the Member’s misconduct. The Member’s repeated misconduct occurred throughout the 2012-2013 academic year, and it included inappropriate touching, inappropriate language, and remarks of a racist nature. The Member also displayed a troubling lack of self-control. He yelled at students, kicked furniture, and he was unable to establish or maintain appropriate boundaries with his students. Publication with name will signal to members of the profession and the public that conduct of this nature is taken seriously by the College and will not be tolerated.
Furthermore, publication with the Member’s name ensures the transparency of the discipline process and reassures the public that the College acts decisively and does not shield its members when matters of this nature are brought to its attention.
The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.
Date: November 25, 2015
Wes Vickers, OCT Chair, Discipline Panel
Jane Ishibashi Member, Discipline Panel
Stéphane Vallée, OCT Member, Discipline Panel